1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 19.12.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU Review Application (MD)No.53 of 2011 and W.P.(MD)Nos.5943, 9202, 9263 and 9447 of 2011 and M.P.(MD)Nos.2,1,2,3,1,2,2,2,3,4 and 5 of 2011 R.Lakshmi Narasimha Bhattar .. Petitioner in Rev.A.(MD)No.53 of 2011 Sri Kovil Vedavyasa Lakshmi Narasimha Bhattar .. Petitioner in WP(MD)No.5943 of 2011 Sri Kovil Vedavyasa L.Senthamarai Kannan Bhattar .. Petitioner in WP(MD)No.9202 of 2011 & 2nd petitioner in W.P.(MD)Nos.9263 and 9447 of 2011 Sri Kovil Lakshmi Narasimha Bhattar .. 1st petitioner in WP(MD)Nos.9263 and 9447 of 2011 Vs. 1.The Commissioner, HR&CE., Nungambakkam High Road, Chennai. .. 1st respondent in Rev.A(MD).53 of 2011 and WP(MD)Nos.5943, 9202, 9263 and 9447 of 2011 2.The Joint Commissioner cum Executive Officer, Srirangam Arulmigu Aranganatha Swamy Thirukovil, Srirangam, Trichy. .. 2nd respondent in Rev.A(MD).53 of 2011 and 3rd respondent in W.P(MD)Nos.5943, 9202, 9263 and 9447 of 2011 3.S.Singaperumal Uthamanambi .. Respondent No.3 in Rev.A(MD)No.53 of 2011 https://hcservices.ecourts.gov.in/hcservices/ 2 The Joint Commissioner, HR&CE (Admn.) Trichy. .. 2nd respondent in WP(MD)Nos.5943, 9202, 9263 and 9447 of 2011 Padmavathy .. 4th respondent in WP(MD).5943 of 2011 4.Appan Pranathathrihara Rengachari Swamigal, Hereditary Trustee, Arulmigu Aranganatha Swamy Thirukovil, Srirangam, Keezha Chithirai Veedhi, Srirangam, Trichy-6. 5.N.Sridhar .. 4th and 5th respondents in WP(MD)No.9263 of 2011 Review Application(MD)No.53 of 2011 has been preferred under Section 114 read with Order 47 Rule 1 of CPC to review the order dated 17.09.2009 in WP(MD)No.8418 of 2009. W.P.(MD)No.5943 of 2011 has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records pertaining to the impugned order of the third respondent in Na.Ka.3317/1420/D1, dated 9.3.2011 and quash the same and to direct the respondents to give the honour of Theertha Alangaram to the petitioner continuously. W.P.(MD)No.9202 of 2011 has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records of the third respondent dated 03.06.2011 passed vide proceedings in Na.Ka.No.3615/1420/D1 and quash the same and consequently to direct the third respondent to permit the petitioner to recite Panchangam by helping his father in Arulmighu Aranganathasamy Temple. W.P.(MD)No.9263 of 2011 has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of mandamus to direct the respondents to permit the petitioners to do the Sri Rengesa Prohida Service in the place of Sri Veda Vyasa Rangaraja Battar as requested in his representation dated 11.7.2011 forthwith. W.P.(MD)No.9447 of 2011 has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records of the third respondent dated 26.07.2011 vide Na.Ka.No.2243/1417/D1 and quash the same and to direct the third respondent to implement the order dated 18.12.2008 passed by the department. https://hcservices.ecourts.gov.in/hcservices/ 3 For Petitioner : Mr.T.L.Ram Mohan, Senior Counsel for Ms.J.Anandhavalli in all petitions For Respondents : Mr.M.Govindan, Spl.G.P. for R-1 in Rev.A(MD)No.53 of 2011 for R1 and 2 in WP(MD)No.5943, 9202, 9263 and 9447 of 2011 Mr.K.Govindarajan for R-2 in Rev.A(MD)No.53 of 2011 for R-3 in WP(MD)Nos.5943, 9202, 9263 and 9447 of 2011 Mr.D.Rajagopal for R-3 in Rev.A(MD)No.53 of 2011 Mr.G.R.Swaminathan for R-4 in WP(MD)No.5943 of 2011 Mr.M.Sureshkumar for R-5 in WP(MD)No.9263 of 2011 COMMON ORDER One Lakshmi Narasimha Bhattar is the petitioner in W.P. (MD)No.5943 of 2011 and in Review Application (MD)No.53 of 2011. In W.P.(MD)No.9202 of 2011, his son Senthamarai Kannan Bhattar is the petitioner. In the other two writ petitions, i.e., W.P. (MD)Nos.9263 and 9447 of 2011, both father and son have jointly filed the same. 2.Initially, the review application filed by the Lakshmi Narasimha Bhattar came up before this court with a condone delay application in M.P.(MD)No.1 of 2011 to condone the delay of 552 days in filing the review application. In the condone delay application, notice was ordered to the respondent on 8.6.2011. Subsequently when the matter came up after notice on 23.11.2011, this court condoned the delay after an earlier notice to the standing counsel for the the Joint Commissioner, HR&CE-cum- Executive Officer, the Additional Government Pleader for the Commissioner HR&CE and for one Singaperumal Uthamanambi, S/o Sadagopa Chariyar (third respondent), for whom notice was taken by Mr.D.Rajagopal. In view of the long standing dispute between the parties and in the facts and circumstances of the case, the delay was condoned and the review application was directed to be numbered. It was at this stage, the counsel for the temple management informed that the very same petitioner and his son have filed four other writ petitions and wanted those matters also to be taken up for hearing. They were directed to be posted along with the review application after the same was numbered. 3.Except W.P.(MD)No.5943 of 2011, the other three writ petitions were on notice on admission stages. As per the roster arrangement, these matters were to be posted only before this Court. Even when W.P.(MD)No.9447 of 2011 came before V.Ramasubrmanian, J., he directed all the matters grouped together and to be posted along with the review application https://hcservices.ecourts.gov.in/hcservices/ 4 which was then at a SR stage. Since both parties have agreed to argue all matters and when they were listed for final hearing on 03.12.2011, the counsel for the petitioner Ms.J.Anandhavalli requested for being specifically adjourned to 08.12.2011 as she had engaged a senior counsel. Therefore, the matter as per her request was adjourned to 08.12.2011. 4.Heard the arguments of Mr.T.L.Ram Mohan, learned Senior Counsel for Ms.J.Anandhavalli, learned counsel appearing for petitioners in all petitions, Mr.M.Govindan, learned Special Government Pleader taking notice for Commissioner of HR&CE, Mr.K.Govindarajan, learned counsel appearing for the Joint Commissioner and Executive Officer of Arulmigu Sri Ranganathar Thirukoil, Srirangam, Mr.G.R.Swaminathan, learned counsel appearing for Padmavathy (R-4 in W.P.(MD)No.5943 of 2011), Mr.D.Rajagopal, learned counsel appearing for Singaperumal Uthamanambi (R-3 in Review Application (MD)No.53/2011) and Mr.M.Sureshkumar, learned counsel appearing for Mr.N.Sridhar (R- 5 in WP(MD)No.9263 of 2011). 5.The case of the petitioner Lakshmi Narasimha Bhattar was that he was one of the hereditary trustee and administrator of the temple along with four hereditary trustees. He claimed inheritance from Sri Vedavyasa Bhattar and claimed to be his 35th descendant. Senthamarai Kannan Bhattar is his son. The petitioner was rendering his services and was receiving honours for several years from the temple. The honours to be received are found in the “Thittam” form. The said form contains the services done by the ancestors of the petitioner. The service rendered was the recitation of Panchangam before the deity Sri Ranganathar at the time of “Viswaroopam”. From time immemorial, the custom and practice of recitation of Panchangam was by standing on the “Kulaskarampadi” in the temple and it cannot be done in any other place. Such custom and usage cannot be altered by the department. 6.One Venkatakrishnan, who was a third party filed an application before the Joint Commissioner, HR&CE (Administration), Tiruchirappalli being O.A.No.40 of 2005. In that application, the petitioners were not made as parties. By an order, dated 11.10.2006 the Joint Commissioner, HR&CE held that the claim of Lakshmi Narasimha Bhattar and Senthamarai Kannan Bhattar being the hereditary Kaingaryadarars are entitled for recitation of Panchangam during Visvaroopam of Sri Ranganathar was rejected. But at the same time, during daily recitation of Panchanagam in the Perumal Sannathi, four slokas from Rangarajasthvam and four slokas from Sri Gunarathnakosam in the Thayar Sannathi are to be recited and that the entire recitation should be completed within five minutes. The petitioners were not made as parties before passing the order. 7.The petitioner Lakshmi Narasimha Bhattar filed an appeal against the said order under Section 69(1) of the Tamil Nadu HR&CE Act, 1959. The said appeal was treated as a third party appeal and taken on file as A.P.No.73 of 2009 by the Commissioner of HR&CE. The Commissioner, HR&CE by his order dated 27.4.2010 held that since the petitioner was not impleaded by the Joint Commissioner, his order was set aside. The matter https://hcservices.ecourts.gov.in/hcservices/ 5 was remanded for fresh enquiry after impleading the petitioner and must pass a final order within two months. The Commissioner also advised the Joint Commissioner to bear in mind that the custom and usage purported to have been followed in the temple at the time of Viswaroopa Dharsanam in the morning should not cause inconvenience to the worshippers and the devotees should not be made to stand in queue for an indefinite duration. Subsequent to the order of remand, the matter was taken up by the Joint Commissioner. 8.In the meanwhile, the petitioner sent letters dated 28.5.2008 and 01.12.2008 to the Joint Commissioner, HR&CE and the Executive Officer praying that as per the practice of the temple during festival days, next to Archakars, being Vedavyasa Bhattar, he should be given an honour. But in the year 2008 during Viruppan festival, he was not given his due honour. One Singaperumal Uthama Nambi sent a letter dated 03.02.2009 to the Joint Commissioner stating that he is the hereditary trustee and after honour received by the Archakars, he should be given the second honour. It was brought to the notice of the Joint Commissioner that both of them were making public quarrel over the issue creating embarrassment for the temple administration. They were informed that both of them should approach the authority under Section 63(e) for establishing their customary right to receive honour and that until such time, the honour given will be stopped to both and that after the Archakas, the second honour will go to one Koratumaniam. The petitioner issued a legal notice to the Joint Commissioner stating that the second honour should not be given to Koratumaniam, who was only a contractor and who liable to be changed every year. Till such time he obtained an order under Section 63(e), the long standing practice should be continued. The Joint Commissioner sent a reply to the petitioner stating that since already an advisory was given, he should find an appropriate legal solution. 9.The petitioner challenging the temporary stoppage of the honour by communication dated 4.2.2009 issued by the Joint Commissioner-cum-Executive Officer, HR&CE, filed a writ petition before this court being WP.(MD)No.8418 of 2009. In that writ petition, apart from the Commissioner, HR&CE and the Joint Commissioner-cum-Executive Officer of Srirangam Arulmigu Aranganatha Swamy Thirukovil, the petitioner also made Singaperumal Uthamanambi as the third respondent. Though notice was ordered to the third respondent, it was recorded that he had not chosen to enter appearance through any counsel. This court had disposed of that writ petition on 17.09.2009. In that order it was recorded in paragraph 6 as follows: “6.I am convinced that the petitioner has made out a case that the privilege, which was enjoyed by him by virtue of an order dated 18.12.2008 is sought to be dispensed with, without notice to him. Hence, on this short ground, the matter is remanded back to the second respondent for fresh consideration. The second respondent shall issue notice to the petitioner as well as the third respondent herein and pass orders in accordance with law and on merits within a period of four weeks from the date of receipt of a copy of this https://hcservices.ecourts.gov.in/hcservices/ 6 order.” (Emphasis added) 10.It is the case of the third respondent, who was represented by Mr.D.Rajagopal, that he was not heard at the time of disposal of the writ petition on 17.09.2009, though it was an order of remand. However, pursuant to the remand order, the Joint commissioner sent notices to Lakshmi Narasimha Bhattar and Singaperumal Uthama Nambi vide notice dated 15.10.2009. Hearings were held on various dates as per the records of proceedings before the Joint Commissioner and submitted by this court. The following is the details regarding the date of hearing and the stand of respective parties before him : Hearing date Date of receipt of notice by petitioner Details of the hearing attended by the petitioner (Lakshmi Narasimha Bhattar) Details of hearing attended by third respondent (Singaperumal Uthama Nambi) 23.10.2009 16.10.2009 Present. Sought for adjournment Present. Sought for adjournment 30.10.2009 21.10.2009 Present. Sought for adjournment Present. Sought for adjournment 04.11.2009 27.10.2009 Present. Sought for adjournment Present. Sought for adjournment 16.11.2009 02.11.2009 Present. Sought for adjournment. Asked to examine the respondent, thereafter to enquire him. As agreed respondent was examined Present. Respondent was examined. R1 to R4 marked 30.11.2009 09.11.2009 Absent Present 08.12.2009 14.11.2009 Present. As senior counsel was away, sought for adjournment Present 16.02.2010 27.11.2009 Present Present. R5 to R7 marked. Respondent was cross examined 06.03.2010 05.02.2010 Absent As senior counsel was away, sought for adjournment 11.03.2010 09.03.2010 Adjournment was sought through phone. Counsel not present. Counsel present 19.03.2010 16.03.2010 Advocate boycott. The case adjourned 15.04.2010 12.04.2010 Counsel present and sought adjournment Present 03.05.2010 26.04.2010 Present Present. Respondent cross examined. https://hcservices.ecourts.gov.in/hcservices/ 7 05.06.2010 Counsel signature obtained in case record Absent Absent. Sought for adjournment through phone 01.07.2010 24.06.2010 Absent. As counsel was out of station, sought for adjournment Present 24.07.2010 17.07.2010 Absent Absent 19.08.2010 Known in person Present Present. Respondent was cross examined 25.08.2010 Known in person Absent Present. Petition was given to examine the witnesses on the side of respondent. 15.09.2010 08.09.2010 Present Present. Statement of witnesses filed 23.09.2010 Signed in the case records Absent Absent 19.10.2010 14.10.2010 Absent Absent 09.11.2010 Vaikunda Ekadasi festival 04.11.2010 Absent Absent 25.02.2011 21.02.2011 Absent. Despite direction by the High Court, petitioner did not cooperate for enquiry. A letter was sent asking him to appear on 27.4.2011. If not appeared on that day, orders will be passed as per documents available. Present 27.04.2011 25.04.2011 Present. Counsel sought 4 weeks adjournment. Refused to sign the proceedings. Present 10.05.2011 27.04.2011 Present. Refused to sign the register informing the adjournment of enquiry on 10.5.2011 Mr.M.Jawahar appeared on behalf of petitioner. Petitioner absent. Sought for adjournment. Refused to sign the proceedings. Present with counsel. https://hcservices.ecourts.gov.in/hcservices/ 8 14.06.2011 Counsel signed Petitioner absent. Senior counsel also absent. As per the direction of High Court, an order was passed on 26.7.2011 in Na.Ka.No.2243/1417/D1 Present along with counsel. 11.It must be noted that by an order passed by this court, the Joint Commissioner was constrained to pass orders within the time frame fixed by this court. Further having given several adjournments, the petitioner refused to sign the proceedings sheet. Therefore the Joint Commissioner passed an order on 26.7.2011. By that order, the Joint Commissioner held that both Lakshmi Narasimha Bhattar, the petitioner and the contesting respondent Singaperumal Uthama Nambi and their legal heirs need not be given any Yatra Danam Mariyathai. Since by Yatra Danam, they were given Re.1/-, and by stopping the same, there will be hardly any reduction of income for both of them. Further, the said payment was not found in the “Thittam”. He found that the second honour after the Archakas was not found in the records of the temple. The petitioner had not proved to the satisfaction of the authorities that he was entitled to have such an honour. That order became the subject mater of the writ petition in W.P.(MD)No.9447 of 2011. That writ petition is yet to be admitted. 12.The petitioner also raised additional grounds to contend that the respondents cannot change a 10 century old practice and the order was passed even before his review petition could be heard by this court. But, in order to get over the earlier order with a time frame fixed by this court, the petitioner chose to file the review application only on 21.04.2011. His review papers were returned to the counsel for the petitioner. The M.P. for condoning the delay was only numbered by the registry on 7.6.2011. It was brought for admission before this court only in 8.6.2011 and notice was ordered. The petitioner as per the proceedings initiated pursuant to the direction issued by this court had participated in the various dates of hearing. But he was taking repeated adjournments, thereby embarrassing the Joint Commissioner who was already under constraint to pass an order within the time frame fixed by this Court. The attempt to file the review application after a period of 552 days is clearly motivated. Having participated in the proceedings, the petitioner cannot maintain the review application and that too at the tail end of the proceedings. In any event, since the order has been passed by the Joint Commissioner after due notice to both sides on 26.7.2011, the petitioner will have to blame himself for his delay tactics. This court do not find any case is made out for reviewing the earlier order. Hence, the Review Application (MD) No.53 of 2011 will stand dismissed. 13.Similarly, it must be noted that it is the petitioner who had sent representations to the Joint Commissioner to restore receiving of the second honour after the Archaks vide letters dated 28.05.2008 and 01.12.2008. When due to public quarrel and nuisance created by the rival claimants, the Joint https://hcservices.ecourts.gov.in/hcservices/ 9 Commissioner had stopped the practice temporarily and directed both parties to file applications under Section 63(e). It is the petitioner who had moved this court and got an order without the contesting respondent being heard. He had not filed any writ appeal against the order. On the contrary he had participated in the proceedings and halfway through and for reasons best known stopped going before the authority, though he was bound by the order of this court dated 17.09.2009 in W.P.(MD)No.8418 of 2009. 14.The only grievance projected by the petitioner before this court as recorded in the earlier order and it reads as follows: “4.The grievance of the petitioner appears to be that no opportunity was granted to them to place their submissions before the second respondent and it is not known as to how the second respondent could have passed this order without setting aside the earlier order dated 18.12.2008, which is admittedly beneficial to the petitioner. Though, ultimately the controversy should be only resolved by a proper statutory petition under Section 63(e) of the Act.” (Emphasis added) 15.Therefore having projected their grievance of not being heard and when this court had already emphasized that ultimately for establishing the customary right, the remedy will be only under Section 63(e) of the HR&CE Act, the petitioner cannot on second thoughts move this court to review the order after a period of 1-1/2 years, especially when the court had directed the matter to be disposed of within four weeks. In fact, the petitioner's grievance was accepted by this court and he was directed to go before the Joint Commissioner. It is surprising to note that he should make a grievance of the order passed by the authority, when he himself only wanted an hearing by the Joint Commissioner. When once his petition was dismissed by the Joint Commissioner, the petitioner's remedy is only to file a petition under Section 63(e) to establish his customary right to receive honours. In the alternative, as against the order passed by the Joint Commissioner, dated 26.07.2011, the remedy open to him is to file an appeal under Section 21 of the HR&CE Act. Therefore, the petitioner can be well advised to move the authority if so aggrieved rather than again and again come to this court with one petition or other. It is not as if the petitioner had not chosen to move the Commissioner under Section 21 in other cases. As against the order dated 19.5.2011 by the Joint Commissioner, he had already filed an application under Section 21 before the Commissioner, HR&CE and it is pending in R.P.No.49 of 2011. In view of the fact that the review application is dismissed and also the fact that the petitioner has a remedy by way of an appeal under Section 21, failing which a petition under Section 63(e) and as against such order an appeal suit under Section 70(1) and if there was further grievance over the outcome of the suit come before this Court by way of a statutory appeal to this High Court under Section 70(2) of the Tamil Nadu HR&CE Act. He has a galaxy of forums provided under the Act itself and certainly a petition under Article 226 https://hcservices.ecourts.gov.in/hcservices/ 10 is not the remedy. This court is not inclined to entertain the writ petition and hence W.P.(MD)No.9447 of 2011 will stand dismissed. 16.In W.P.(MD)No.5943 of 2011, the petitioner challenged a communication dated 09.03.2011 addressed to the counsel for the petitioner in response to the legal notice sent by her. In that notice, the Joint Commissioner-cum-Executive Officer asked the petitioner to furnish the date of Theertham date (death anniversary date) of Sri Ramapillai Bhattar and they have not replied. The petitioner was informed that Theertha alangaram is not done every month and it was only on the date of the death anniversary alone it was to be done. The temple was observing birth anniversaries of Azhwars and Achariyars and also for the temple trustees, temple Sthalathars' birth star. At the time of death anniversary, the “alangara paditharam” was given. What was given to Sthalathars as “paditharam” was more than what has been given to Achariyars. There was a dispute with reference to the date of death anniversary of Sri Ramapillai Bhattar also known as Veda Vyasa Bhattar. One family was claiming that it falls in the Karthigai Ashtami thithi and the other family is claiming that it is in the Tamil month of Ippasi. There cannot be two different dates for the same person for doing Theertha Alangaram. The petitioner's counsel was directed to instruct his client Lakshmi Narasimha Bhattar as per letter dated 03.02.2011 that he should give the correct Theertham date, so that proper Alangarams can be sent to him. 17.The contention of the learned counsel for the petitioner was that whenever the honour turn came to his client's family, his client used to inform the temple administration 10 days in advance and on receipt of the same, honours were sent to him. According to him, the Thithi falls only during the Tamil month of Iyppasi. The petitioner also informed the temple that Padmavathy who contradicts the date was not entitled to any honour on account of Sri Ramapillai Bhattar's Theertham date. 18.When the matter came up before this court on 18.10.2011, V.Ramasubramanian, J., had passed an order stating that it was not easy to resolve this dispute for the present and it was not feasible to hear the arguments on the question of maintainability of the writ petition. Therefore, a direction was issued to the temple to present the honours to the petitioner on 20.10.2011 without prejudice to the right of the respondents to contest the maintainability of the writ petition. 19.Firstly, it must be noted that the writ petition is not maintainable. If the petitioner is aggrieved by the order of the Joint Commissioner-cum-Executive Officer, he has a remedy by way of an appeal under Section 21 as he himself had exercised a similar right in R.P.No.49 of 2011. Even otherwise, on turn basis the two families were enjoying some honours on the Theertham date of Veda Vyasa Bhattar a.k.a Sri Ramapillai Bhattar. It will be in the interest of the temple to have a specified date rather than vary it depending upon the turn. In any event, it is for the petitioner to establish that he need not furnish any particular date and that he can inform each year the date of theertham only 10 days before the said date. Such a https://hcservices.ecourts.gov.in/hcservices/ 11 stand is most unhelpful in the interest of the temple. In the light of the above, this court do not wish to entertain the writ petition. Hence the writ petition in WP(MD)No.5943 of 2011 is dismissed. 20.W.P.(MD)No.9202 of 2011 is filed by Senthamarai Kannan Bhattar, who is the son of Lakshmi Narasimha Bhattar challenging an order of the joint Commissioner-cum-Executive Officer, dated 3.6.2011 and after setting aside the same, seeks for a direction to the temple administration to permit him to recite Panchangam by helping his father. W.P. (MD)No.9263 of 2011 is filed by both father and son Lakshmi Narasimha Bhattar