1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 08.02.2011 CORAM : THE HONOURABLE MR.JUSTICE N.PAUL VASANTHAKUMAR and THE HONOURABLE MR.JUSTICE R.SUBBIAH W.A.(MD) No.157 of 2011 1.C.N.Eswara Iyer 2.R.Subramania Iyer 3.S.Swaminatha Iyer 4.P.A.Sankaran Iyer 5.S.Gnamani Iyer 6.A.Cellapa Iyer 7.M.Kannan Iyer ... Appellants Vs. 1.The Commissioner, Hindu Religious and Charitable Endowment Board, Uthamar Ghandhi Road, Nungampakkam, Chennai. 2.The Executive Officer/Joint Commissioner, Arulmighu Subramania Swamy Thirukkoil, Tiruchendur. ...Respondents PRAYER: Writ Appeal is filed under Clause 15 of the Letters Patent against the order dated 31.01.2011 in W.P.(MD) No.528 of 2011 on the file of this Court. Prayer: Writ Petition is filed under Article 226 of the Constitution of India praying for the issue of a Writ of Certiorari, to call for the records of the first respondent in his proceedings Mu.Mu.No.70805/2009 Z2, dated 13.03.2010 and the consequential order passed by the second respondent in his proceedings Na.Ka.No.8004/2009 A6, dated 31.12.2010 and quash the same as illegal and enforceable. For Appellants : Mr.K.Srinivasan Senior Counsel for Mr.S.Muthalraj For 2nd Respondent : Mr.R.Thiyagarajan Senior Counsel for Mr.PTS.Narendravasan For 1st Respondent : Mr.M.Rajarajan, Government Advocate. JUDGMENT R.SUBBIAH,J. The question that falls for consideration in this appeal is that whether the proceedings of the first respondent dated 13.03.2010 and the consequential order passed by the second respondent in his proceedings Na.Ka.No.8004/2009 A6, dated 31.12.2010, directing the appellant to hand over the keys of Karuvulam of the temple is correct. https://hcservices.ecourts.gov.in/hcservices/ 2 2.Brief facts which are necessary for the disposal of the writ appeal are as follows: The appellants are the members of Thiriswanthira Sthalathar. They are also called as Mukkani Brahmins. They are the Sthalathars in Sri Subramania Swamy Thirukoil, Tiruchendur and on finding the place Tiruchendur, the God Subramania set up 2000 families of this caste to attend to the services of the duty which were faithfully performed. The appellants are performing the services viz., Kaiyatchi, Kattiam, Athyanam, Veda Parayanam, Panchangam, and Asirvadam. Adyanam means Archanai."looking after the jewels of the deity is known as Kaiyatchi. The jewels are kept in the Karuvulam (safe custody) and in vahana room, Pattupetti. Karuvalam is also known as Padicheppu. In that karuvulam there is peria seppu, the jewels for adorning the deity during festival days are kept in Peria seppu. Parivattams for the deity are kept in pattupetti. The sthalathars are responsible for the above said 4 items. They are in their custody from time immemorial. On the outer door, there is only one lock and on the inner door there are 3 locks, the total locks being four. The keys of the 4 locks are in the custody of 4 padikararkal. They keep the keys in turn. There are two locks for Periaseppu. The keys of two locks are in the custody of the 4th padikarar. There is only one lock for Pattupetti, the key of that lock is in the custody of the first padikaragal the key of that box was never in the custody of the Executive Officer. Vahana Arai has four locks and the keys of those locks are in the custody of the four Padikararkal. 3.In short, it is the case of the appellants that the keys of Karuvulam are in their custody, in turn. Whileso, in the said situation, on 31.12.2010, the second respondent sent a communication in Na.Ka.No.8004/2009 A6, dated 31.12.2010 referring to an order of the first respondent dated 13.03.2010 directing the appellants to hand over the six keys entrusted by the second respondent. The appellants were not aware of the order of the first respondent till the communication of the second respondent and the members of Thiriswanthira Sthlathars are very much aggrieved since their age old customary right is being usurped without any justifiable and reasonable cause. Hence, the members of the said Sthalathars made a representation to the second respondent requesting him to espouse their cause to the first respondent. But the respondents declined the request of the senior members of the said Sthalathars. Thereafter, the appellants sought for a copy of the order of the first respondent by a written request on 07.01.2011. But the copy of the order of the first respondent was not furnished to the appellants inspite of the request made by them. Finally, aggrieved over the said order the appellants have filed the writ petition. 4.The case of the appellants was resisted by the respondents stating that earlier there were complaints about four Sthalathars in the year 1966 for misappropriation and mishandling of the temple jewels and hence O.S.No.113 of 1969 on the file of the Sub Court, Tuticorin came to be filed by the temple authorities against the Sthalathars. The suit was decreed on 02.08.1977. An appeal filed by the above said Sthalathars before the High Court, Madras in A.S.No.500 of 1980 was dismissed on 03.07.1986. The execution proceedings taken thereafter before the Sub Court, Tuticorin was transferred to the District Munsif Court, Tiruchendure and the same is pending even after 44 years. Though the https://hcservices.ecourts.gov.in/hcservices/ 3 appellants were not appointed to any position in the temple, since their activities were not conducive for a proper administration of the temple and its properties, the Board of Trustees passed a resolution dated 28.11.2009 for recovering the keys of Karuvulam in the hands of Sthalathars and forwarded the said resolution to the first respondent for further action. The first respondent after considering the report of the Joint Commissioner and also the resolution passed by the Board of Trustees permitted by order dated 13.03.2010, to break open the karuvulam in the presence of the officers mentioned therein in the event of the Sthalathars failing to hand over the keys of the Karuvulam to the temple administration. Pursuant to the above order of the first respondent, the second respondent by communication dated 31.12.2010 called upon the appellants to hand over the keys of the Karuvulam to the temple administration by 11 a.m. on 11.01.2011. The appellants are having alternate remedy against the said order under Section 114 of the Hindu Religious and Charitable Endowments Act, 1959 [hereinafter referred to as "the Act"]. Hence, the writ petition is not maintainable. 5.It is the further case of the respondent that Section 42 of the Act provides that no office holder or servant of a religious institution or other person shall have the right to possess the jewels, unless there is a direction by the Commissioner. 6.Section 56 of the Act further provides that all office holders and servants attached to any religious institutions or in receipt of any emoluments or perquisites therefrom are controlled by the trustees and are subject to the disciplinary control of the trustees. 7.It is further stated that the Government have framed rules called the "Religious Institutions Custody of Jewels, Valuables and Documents and Disposal Rules in exercise of its power under Section 116 (2) of the Act. The said rules provide for maintenance of register containing the jewels, gold vessels, silver vessels and other valuables. The rules also provide for arrangements of safe custody of jewels and valuables and make the trustees responsible for safe custody of the jewels and valuables in the strong room with suitable locking arrangements. Hence, having regard to the mandatory requirement provided under the above said rules, it is the duty of the Executive Officer and the Chairman of the Board of Trustees to bring the jewels and valuables under the joint custody and hence the order of the first respondent dated 13.03.2010 was passed only with a view to comply with the statutory requirements. 8.The learned single Judge on consideration of the submissions made by the respective parties, dismissed the writ petition. Hence, the present appeal. 9.We have heard the submissions made by the learned counsel for the respective parties and perused the entire materials available on record. 10.It is the main contention of the appellants that by calling upon them to hand over the keys of Karuvulam, their age old customary right was usurped without any justifiable and reasonable cause. Per contra, it is the contention of the respondent that only in accordance with the statutory requirement, the impugned proceedings have been passed. Learned counsel for the respondents placed reliance on Section 42 of the https://hcservices.ecourts.gov.in/hcservices/ 4 Act which provision provides that no office holder or servant of a religious institution shall have the right to be in possession of the jewels or other valuables belonging to the religious institution, notwithstanding anything contained in any scheme settled or deemed to have been settled under the Hindu Religious and Charitable Endowments Act or in any decree or order of a Court or any custom or usage to the contrary. The said provision reads thus: "42.Office-holders and servants of religious institutions not to be in possession of jewels, etc., except under conditions.- Notwithstanding anything contained in any scheme settled or deemed to have been settled under this Act or in any decree or order of a Court or any custom or usage to the contrary, no office-holder or servant of a religious institution or other person shall have the right to be in possession of the jewels or other valuables belonging to the religious institution except under such conditions and safeguards as the Commissioner may, by general or special order, direct." 11.A careful reading of the said section would show that no office holder or servant of a religious institution shall have the right to be in possession of the jewels or other valuables belonging to the religious institution, notwithstanding anything contained in any scheme settled or deemed to have been settled under the Hindu Religious and Charitable Endowments Act or in any decree or order of a Court or any custom or usage to the contrary. 12.Though a submission was made by the learned counsel appearing for the appellants that as per scheme decree, dated 30.09.1930 in O.S.No.4 of 1929 on the file of the learned District Judge, Tirunelveli, the keys of karuvulam shall be in the custody of the Sthalathars and it should be securely wrapped and sealed by the trustee or his nominee and the karuvulam will not be shut or opened without due notice to the trustee or his agent or nominee, the scheme decree was cancelled by the Commissioner by exercising power under Section 65 of the Act. 13.Section 65 of the Act deals with the power of the Commissioner to settle the Schemes. Section 65(4)(a) of the Act gives power to the Commissioner to modify the Scheme. The said provision reads thus:- "65(4)(a).- The Commissioner may, at any time after consulting the trustee, by order, modify or cancel any scheme in respect of a math or a specific endowment attached to a math and in force and settled under sub-section (1) or any scheme in force settled or modified by the Board under the Tamil Nadu Hindu Religious Endowments Act, 1926 ([Tamil Nadu] Act II of 1927), or deemed to have been settled under that Act or any scheme in force settled or modified by the Commissioner under this Act or any Scheme in force settled or modified by the Court in a suit under sub-section (1) of section 70 or on an appeal under sub-section (2) of that section or any such scheme in force deemed to have been settled or modified by the Court under clause (a) of sub-section (2) of section 118: https://hcservices.ecourts.gov.in/hcservices/ 5 Provided that such cancellation or modification of a scheme in force settled or modified by the Court in a suit under sub-section (1) of section 70 or of an appeal under sub- section (2) of that section or of a scheme in force deemed to have been settled or modified by the Court under clause (a) of sub-section (2) of section 118 shall be made only subject to such conditions and restrictions as may be prescribed. (b) If the Commissioner is satisfied that any such scheme referred to in clause (a) is inconsistent with this Act and the rules made thereunder, he may, at any time, modify it in such manner as may be necessary to bring it into conformity with the provision of this Act and the rules made thereunder." 14.Therefore, we do not find any legal infirmity in the proceedings initiated by the first respondent. Moreover, from the records, we find that already a suit was filed as against four sthalathars in the year 1966 for misappropriation and mishandling of the temple jewels and hence O.S.No.113 of 1969 on the file of the Sub Court, Tuticorin came to be filed by the temple authorities against the Sthalathars. The suit was decreed on 02.08.1977. An appeal filed by the above said Sthalathars before the High Court, Madras in A.S.No.500 of 1980 was dismissed on 03.07.1986. The execution proceedings taken thereafter before the Sub Court, Tuticorin was transferred to the District Munsif Court, Tiruchendure and the same is pending even after 44 years. Against the said judgment and decree, no further appeal has been filed by the said Sthalathars. 15.Considering all these aspects, we do not find any infirmity in the order passed by the first respondent, dated 13.03.2010 since the said order is passed in consonance with the mandatory requirements under the provisions of the Act. Moreover, it is the contention of the respondents in the counter affidavit that the appellants are having alternative remedy under the provisions of the Act. Therefore, we are not inclined to interfere with the order passed by the learned single Judge and we confirm the same. The writ appeal is dismissed accordingly. No costs. Consequently, connected miscellaneous petition stands closed. SD ASST REGISTRAR ( CO ) /TRUE COPY/ SUB ASST REGISTRAR sms To 1.The Commissioner, Hindu Religious and Charitable Endowment Board, Uthamar Ghandhi Road, Nungampakkam, Chennai. 2.The Executive Officer/Joint Commissioner, Arulmighu Subramania Swamy Thirukkoil,Tiruchendur. 1CC TO MR. S. MUTHALRAJ, ADVOCATE, SR: 4837: 1CC TO MR. P.T.S. NARENDRA VASAN, ADVOCATE, SR: 4737: 1CC TO THE SPL. GOVT PLEADER SR: 4879: DM:2011:FEBRUARY:08:: Order made in W.A.(MD) No.157 of 2011 5p:6c:: 08.02.2011 https://hcservices.ecourts.gov.in/hcservices/