IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 30 .04.2009 CORAM THE HON'BLE MR. JUSTICE S.J.MUKHOPADHAYA,J. AND THE HON'BLE MR. JUSTICE N.KIRUBAKARAN W.P.No.30779 of 2008 and W.P.No.2670 of 2009 ---- Akila .. Petitioner in W.P.No.30779/2008 K.Periyakaruppan .. Petitioner in W.P.No.2670/2009 vs 1. The Govt. of Tamilnadu rep. By its Secretary, P.W.D Secretariat, Chennai-600 009. 2. The Secretary to Govt., H.R. & C.E Secretariat, Chennai 600 009. 3.The Commissioner, H.R. & C.E, Nungambakkam Chennai 600 034. 4.K.Raju 5.K.Subramani 6.K.Suresh ... Respondents in both the writ petitions Prayer in W.P.No.30779 of 2008: This Writ Petition is filed praying this Court to forbear the respondents, their men and agent from removing or demolishing the Istalingeswarar Temple, in the existing place in the Govt. Estate, Chennai-600 002. Prayer in W.P.No.2670 of 2009: This Writ Petition is filed praying this Court to forbear the respondents, their officials, their men, agent and servants from removing or replacing Ishtalingeswarar Deity and the Temple from the existing place of Omandhurar Garden Estate, Chennai. https://hcservices.ecourts.gov.in/hcservices/ Mr.G.Rajagopalan, Senior Counsel for Mr.P.Balamanickam ... For Petitioner in W.P.No.30779/08 Mr. T.V.Krishnamachari ... For Petitioner in W.P.No.2670/09 Mr.J.RajaKalifulla G.P ... For first respondent in both WPs Mr.T.Chandrasekaran Spl.G.P. ... For Respondents 2 and 3 in both WPs N.KIRUBAKARAN,J. These writ petitions raise a point with regard to 'Swayambu lingam' (Manifestation of Lord Shiva swaroopam) whether the Swaymabu lingam can be replaced in a different place rather than from the present place. It is stated that man is a creation of God and it is also being said that God is made by man. The faith of God, the scientist say is embedded in the genes of the men. 2. As the matter relates to faith in religion and also with regard to 'Swayambu Linga' (Manisfestation of Lord Shiva by himself), without giving any personal opinion, the Court is constrained to consider the issue as it was called upon to do so legally. 3. The facts of the case are as follows: Both W.P.Nos.30779 of 2008 and 2670 of 2009 are public interest litigations praying for a writ of mandamus forbearing the respondents from removing, demolishing Istalingeswarar temple in the existing place inside the Government Estate, Chennai 600 002. Both petitioners (hereinafter referred as petitioner) stated in their writ petitions that "Swaymbu lingam" ( Manifestation of Lord Shiva swaroopam) was identified in the year 1600 in the lands which is now known as Government Estate, Chennai-600 002. 4. It is also alleged that only in the year 1968, the priest Kuppusamy Gurukkal performed pooja to the presiding deity, Istalingeswarar requesting the then Government to construct a compound wall around the temple in the year 1968 and the same was approved by the Government and the temple was renovated. At that time, an Aavudyaar i.e., Pedastal was built around the "Baanam" (Swayambu Lingam) and a Kumbabishekam was performed. After the life time of the priest Kuppusamy Gurukkal , the respondents 4 to 6 were appointed as hereditary Trustees by the second respondent (secretary to H.R and C.E department) by virtue of the order passed in https://hcservices.ecourts.gov.in/hcservices/ O.A.No.3/2000 on 05.06.2002. 5. It is also averred by the petitioner in the reply to the counter affidavit filed by the respondents 1 to 3 that the inscription of 1932 in a stone embedded in the temple says that Venkatasamy Naidu of Kottur village has donated some contributions to the Istalingeswarar. She also quoted a poem from 'Thirumandiram' which was composed by saint Thirumoolar who lived nearly 1800-1900 years ago. The second Thandhiram in poem 515: under the caption "Thiru Koizhil Zhivu" speaks about consequences of damaging the holy temple and damages of transplanting lingam. Based on that, the petitioner contended that it is a "Swaymbu lingam" (Manifestation of Lord Shiva swaroopam by himself) and not man made and that it cannot be removed, relocated and if it is done it would amount to infringement of fundamental right guaranteed under Article 25 and 26 of the Constitution of India. The petitioner apprehended that the lingam would be replaced on account of the respondent/Government's effort to construct a new building of the New Legislative Assembly Complex. 6. The state Government filed their counter stating that the Government decided to construct a State of Art new Assembly complex for Tamil Nadu legislative Assembly at Omandurar, Government Estate, Chennai-2 vide G.O.Ms.No.209 Public Works Department dated 04.07.2007. It had already approved the plan for construction for new Assembly complex and the temple lies within the area demarcated for the third circle of the New Legislative Assembly Complex. The temple around 'Ganesa' naturally formed in the banyan tree "Alaramara Iyarkai Vinayakar Temple" has already been relocated in another area near Omandurar Government Estate as per G.O.Ms.No.330 Public Works Department dated 11.11.2008 leaving the Banyan tree as the tree does not lie within the area demarcated for the construction of New Assembly Complex. As per the Government Order, the H.R and C.E department shifted the idols around the Banyan tree to the newly allotted area in the Government Estate complex. Hence, Lord Istalingeswarar temple has to be treated on par with "Alaramara Iyarkai Vinayakar Temple". 7. It is further contended that Thiru.K.Subramanya Gurukkal, one of the hereditary trustees in his letter dated 06.10.2008 addressed to the Chief Engineer (buildings) Public Works Department requested to give suitable alternative site for relocation of the temple and to construct the temple by the Public Works Department. He agreed to shift the temple after the construction of the temple in the relocated site which is adjacent to the area allotted for the Alamara Iyarkai Vinayakar Temple inside the Estate. As per the request of the said Gurukkal, the Government issued orders in G.O.Ms.No.6, Public Works Department dated 06.01.2009 allotting alternative site measuring 2000 sq.ft (50' x 40') in the Government Estate in Survey No.3171/1 (part) which terms has been agreed to by Thiru. Subramanya https://hcservices.ecourts.gov.in/hcservices/ Gurukkal. It was also ordered that the temple may be constructed in the alternative site by Gurukkal with his own funds or the H.R and C.E Department may consider to bring the temple under their control with the consent of the Gurukkal and construct the temple with its funds. 8. It was further contended by the respondents/Government that it is not possible for making alteration in the construction of the building as the petitioner wanted to make alteration in the plan so as to have the temple in the same place. The Government also stated that the petitioner has no documentary proof / evidence regarding the emergence and manifestation of 'Swaymabu Lingam' on its own on earth in the present location. 9. The third respondent filed an affidavit dated 17.2.2009 stating that the respondents 4 to 6 (hereditary trustees) filed O.A.No.3 of 2000 under Section 63 B of the H.R and C.E Act to declare them as hereditary trustees to Arulmigu Istalilngeswarar temple situated at Government Estate, Chennai stating that the deity in question was originally kept in a thatched shed. Further it is stated that the fifth respondent adduced oral evidence before H.R and C.E on 03.04.2002 in which he did not depose to the effect that the deity is a "self incarnated lingam"(Swayambu Lingam) . The third respondent also filed expert opinions given by, 1. Thiru M. Muthiah Stapathi, President/Sthapathy Advisory Committee, H.R & C.E. Department, Government of TamilNadu and 2. Shaktaratna Bramhasri Dr.G.Srinivasa Sastrigal (A. G.S.Sastrigal Astrologer) Veda Vadyar: Arulmighu Kapaleeswarar Temple. Important portion of the opinion given is extracted as follows: by Thiru M. Muthiah Stapathi "The Lingam has got 'Lakshnotharanam' line. The Lingam is made by a 'Silpi". This is not either self incarnated Lingam or Pana Lingam. This Lingam is located facing western side. It was without Avudaiyar (Peetam) for a long time. During 1958-59 a small size Avudaiyar (Peetam) not suitable to Lingam has been made and installed. The upper portions of the Lingam is in Virutham (circle) shape and centre part in 8 Pattams and bottom portion is in square shape i.e., this Lingam is in the form of Brahma, Vishnu and Sivan from bottom. Such lingams are called as Kiriya Lingam. That is, Lingam has been made by human being. Hence, this Lingam can be taken and installed in another place. While doing so, Avudaiyar (Peetam) suitable to Lingam may be made and consecrated duly constructing of 'Garphagraham' (Sanctum-sanctorum) and Artha Mandapam properly" https://hcservices.ecourts.gov.in/hcservices/ Shaktaratna Bramhasri Dr.G.Srinivasa Sastrigal " This Lingam might have been a Samadhi in ancient times. It is felt that it will be good by performing Balayam a temple suitable to Lingam may be constructed and Tiruppani works executed in consultation with Sthapathi and Kumbabishegam may be performed. By performing Balalayam, the Lingam shall be pulled with the help of Cow with thread made up of Dharbai (grass), Nanal (Reed) and Silk thread tied clock wise. After the movement of Lingam, it must be kept carefully in the paddy. ............................................... Even in the case of Suyambu lingam, and if there are hurdles such as poojas not performed for a very long time, touching the deity violating Sastras, damage done to the Swami, Kumbabishegam can be performed by performing Shanthi (rectificatory) ceremony (Pariharam) and Balayam. Moreover, the lingam looks like a created one (Giriya lingam). The structure of the temple is not so good." ........................................... "It is submitted that there will be no Dosham (ill effect) if this temple is shifted to some other place constructing temple with the experts in Silpa Sastras and performed Kumbabishegam" 10. The matter was heard by this Court on 23.12.2008 and allowed the petitioner as well as the respondents to find out some ways and means for shifting the Istalingeswarar temple to an appropriate place, if any land is allotted by the State Government in or around the area where the present the temple is located. Again the matter was heard on 03.02.2009 at the instance of the counsel for the petitioner who informed that the respondents were removing 'Swayambu Lingam' from the temple in question. It was represented by the State that this Court dismissed the similar writ petition with regard to Vinayagar temple. Moreover inview of the observations made by this Court on 23.12.2008, a piece of land has been allotted by the State Government and the trustees of the temple have accepted to shift 'Swayambu Lingam'(Lord Shiva) from the said place and for construction of the new temple at the site allotted by the State Government. 11. It was also shown to the Court that the basement has already been constructed on which 'Swayambu Lingam'(Lord Shiva) will be installed by trustees by performing pooja and number of priest came on 03.02.2009 on the basis of muhurthum. Taking into consideration of best muhurtham for shifting Suyambu (Lord Shiva), it was assured that within fifteen days, temporary structure will be constructed by https://hcservices.ecourts.gov.in/hcservices/ the State Government so as to construct a formal temple in future. In that regard, the hereditary trustees already gave consent. Finally this Court allowed hereditary trustees and the state Government to shift the 'Swayambu Lingam' to the allotted place to do so after the rituals to be performed under the Hindu religion and any action during the pedency of the writ petition shall be subjected to the decision of this Court. 12. Mr.Murugesan, Chief Engineer (buildings) Public Works Department and Gopalakrishnan Superintending Engineer (buildings) Public Works Department visited the spot with experts and they appeared before this Court on 18.2.2009 and represented that they could not find any solution to construct the assembly complex in the place without disturbing the temple. 13. The Chief Engineer (buildings) Public Works Department filed a report on 19.2.2009 stating that it is not possible to construct the assembly complex without removing the Istalingeswarar temple as it lies within the New Assembly Complex building which is under construction and even if the temple is allowed to be there, because of earth work, excavation for huge depth pilecap to a depth of four metre due to heavy load, is carried out and the temple will automatically get disturbed and important portion of the report is extracted as follows: "4. In the place where the temple is presently located, 30 piles (two groups) have to be driven to a depth of 20m (60 ft) from the ground level by using heavy machineries (i.e.) rigs. Over these piles, two concrete pile caps will be casted. These two pile caps are to be tied with the grade beam (Tie Beam), which come across the temple, below 1.50 m (5ft) from the existing ground level. 5. The above said piles, pile caps tie beams and columns are essentially required and cannot be relocated considering the stability of the structure, since the load coming on each column is 5640 tonnes. 6......... 7. The temple is situated where the entry and exit of the Assembly Hall, meant for the members of the Legislative Assembly is to be constructed. 8. While earth work excavation for huge depth pile cap to a depth of 4 m due to heavy load is carried out, the temple will automatically get disturbed." 14. The petitioner filed an objection to the report of the Public Works Department Engineer as well as the opinion of the two experts https://hcservices.ecourts.gov.in/hcservices/ relied on by the Government and stated that the temple can be allowed to remain in the same place and the construction may be carried out peacefully. 15. The Chief Engineer, Public Works Department by his report dated 13.4.2009 informed the Court that out of 1674 piles, 1655 piles were already driven and 19 piles are still pending which are to be driven inside the temple area and the piles have to be driven by using the heavy machineries i.e. Rotary rigs and further stated that the entire construction was held up and further work could not be proceeded leading to increase in cost of project. 16. As the petitioner did not agree for any solution, the matter was heard on merits. We are aware that it is sensitive issue and the Court passes orders purely based on the materials placed before it. 17. Before going into the merits of the case, it has to be understood what is meant by "Swayambu Linga". As per "Tamil Lexicon" published by University of Madras, "Swayambu Lingam" means "Uncreated Linga". "Swamyampu Stalam" means a shrine having a cuyampu-murthi, as kaci, kanci etc. The Hon'ble Supreme Court while deciding the validity of the Uttar Pradesh Sri Kashi Vishwanath Temple Act 1983 (UP Act No. 29 of 1983) viz., Sri Adi Visheshwara of Kashi Vishwanath Temple, Varnasi and others Vs. State of UP and others reported in (1997) 4 SCC 606, makes a reference about "Swayambhu Linga" in the opening paragraph and the same is quoted as follows:- "By and large, every Hindu believes that without visit to Kashi for a bath in River Ganges and prayer offered to Lord Shiva, life is incomplete and meaningless and every endeavour is made to visit Kashi at least once in life. The idol of Lord Shiva at Varanasi on the bank of holy River Ganges is one of the five Jyotirlingas in India believed to be self incarnated (Swayam bhuva) ...........................................Though there are several stories of self incarnation of linga (idol) at Varanasi, the fact remains that it is very ancient." Thus the "swayambu" should have been self occurred and it should be an ancient one and there should be evidence/mythological narration about the same. 18. It is settled principles of law that the party who approaches the Court has to establish his/her rights or infringement of his/her right to get a remedy/relief from the Court. The petitioner averred/alleged that "Istalingeswarar deity" is a "Swayambu" and it cannot be relocated /replaced and if it is relocated or replaced the 'Swayambu Lingam' would lose its power and further contended that any disturbances of 'Swayambu Lingam' would amount to interfering with religious faith which is guaranteed under Article 25 and 26 of the Constitution of India. https://hcservices.ecourts.gov.in/hcservices/ 19. When the petitioner has come out with a case of 'Swayambu Lingam' it is the burden cast upon the petitioner to prove that it is "Swayambu". Further in this case except a photograph of a stone inscription embedded in the temple which shows that one Venkatasamy Naidu of Kottur village donated funds for keeping of the temple in the year 1932, there is neither expert evidence nor historical evidence given by the petitioner to prove that the deity is 'Swayambu Lingam'. The matter revolves around the concept of 'Swayambu Lingam' (Lord Shiva)., The presiding deity may be "Swayambu Lingam" or may not be. However, there is no materials/evidence available to conclude the deity is "Swayambu Lingam" . The above said conclusions are reached by this Court from the facts of the case and nothing beyond that. 20. On the other hand, the Government stated that the petitioner has not produced any proof to show that the deity is a 'Swayambu Lingam' and Government relied upon the opinion of two experts viz.,Thiru.M.Muthiah Sthapathy and Shakthiratna Bramhasri Dr.G.Srinivasa Sastrigal, who opined that the "deity" is not "Swayambu" and it is man made. Moreover, if the deity(lingam) faces west direction and as per the book published by the second respondent H.R and C.E Department, Tamil Nadu Government titled "ThiruMailai "Arulmigu Kapaleeswarar Koil Sthala Varalaru" speaks about the period in which Arulmigu Kapaleeswarar Thirukovil was constructed. After analysing the structures, sculptures and the stone inscriptions and the direction the lord faces it was concluded that it was a recent temple. According to the book if the presiding deity faces the west direction, the temple is of a recent origin (page 24 of the book). The Government has already started putting up construction for New Assembly Complex and the temple comes within the building area and that is the reason why the Government wants the temple to be relocated in the same campus. It is not the intention of the Government to disturb the lingam or relocate the temple far away place. Infact it has offered alternative site to the presiding deity to the extent of 2000 sq.ft through the G.O.Ms.No.6 Public Works Department dated 06.01.2009. It also came forward to build a temple with the funds of H.R and C.E., By shifting the temple from the present place, according to the Hindu sastras, the power and holiness of the deity cannot be disturbed. We are also worshippers of Lord Shiva. According to us, the almighty remains anywhere and everywhere in the world and we cannot fix any particular place or object in which God remains/resides. At this juncture we remember Bhaktha Praghalatha in Hindu mythology, Bhaktha Praghalatha established that the Lord is in existence every where and on his prayer, the Lord Narshimha came out from the pillar pointed out by him. 21. There are many temples which have been relocated and rebuilt. It was put forth by the Government that ArulMigu Kapaleeswarar, Thirukovil, Mylapore was reconstructed after demolition of the old https://hcservices.ecourts.gov.in/hcservices/ temple by the Portuguese. Similar is the story of Kashi Vishwanath temple, Varnasi and Somnath Temple, Gujarat. Therefore, it may not be correct to say that the deity/temple would lose its power if it is relocated . In fact more space to the extent of 2000 sq. ft. has been allotted by the respondent/Government so that the devotees can comfortably worship God. Hence, it is futile to state that the 'Swayambu Lingam' would lose its power and holiness if it is shifted from the present place to any other place. More over, the land on which the temple stands is Government land. 22. There are instances where new temples have come up which are not in consonance with aagamaas or customs being followed by Hindu religion. What was once practised is not being followed today and what is being followed today will not be followed tomorrow. When the times are changing, everything is bound to change. As per aagamaas which is practised in southern states, only a particular sect of community alone is allowed to touch the deity and to perform the pooja whereas in northern part of India all the devotees are allowed to touch the deity and do poojas. The best example is Kasi Viswanathar Temple at Varanasi where all the devotees are allowed to do poojas by touching the presiding deity. Even according to Hindu religion what is being followed in one part of India is not followed in other part. Hence the deity can be worshiped by the devotees in the new location and not necessarily in the present place. 23. It has to be seen that the respondents 4 to 6, who filed O.A.No.3/2000 before the H.R and C.E Department under Section 63 (b) of the Tamil Nadu H.R and C.E Administration 1959 Act, seeking declaration that they are heriditary trustees of Arulmigu Istalingeswarar temple (Government Estate) did not contend that the deity is a 'Swayambu Lingam' in the petition filed in the year 2000. Even in their evidence as contended by the Government, respondents 4 to 6 have not adduced that the presiding deity is a 'Swayambu Lingam'. 24. The respondents 4 to 6 are hereditary trustees of the temple as per the order dated 20.06.2002 and they have been doing poojas to the deity and even before that as per the petition filed by them their father late Kuppuswamy Gurukkal had been doing pooja right from 1947 onwards. The fifth respondent, one of the hereditary trustees, has given a consent letter on 06.07.2008 to relocate the temple in the proper place. When the trustees themselves, who have been doing poojas in the temple right from 1947 on wards, consented for relocation of the temple within the campus, this Court is at loss to understand the grievance of the petitioner. When the hereditary trustees have consented for relocation, it is not open to the petitioner in the guise of "Public Interest" to allege that the rights under Article 25 and 26 are infringed. Comparatively the trustees have more right over the petitioner in this matter. Hence plea of violation of rights under Article 25 and 26 of constitution is rejected. It has been held in a number of judgments of the https://hcservices.ecourts.gov.in/hcservices/ Supreme Court that the right recognised by Article 25(2)(b) must necessarily be subject to some limitations or regulations (Venkatarama Devaru Vs State of Mysore reported in AIR 1958 SC (255). 25. As per the contention of the petitioner relying upon the great Saint Thirumoolar's poem upon replacing the lingam, the consequences will follow only if the lingam is sought to be replaced with a evil/malafide intention of disturbing the deity or to do disrespect to the deity. The action of the Government to relocate the temple in a more spacious place would not come under any of the eventualities stated above. 26. Even if the temple is allowed to remain in the same place definitely the deity will get disturbed because of the piling operations during construction and in that event the consequences will be more. To avoid this, the respondent/Government offered a suitable place which was accepted by the hereditary trustees of the temple. When both the parties have reached a settlement/compromise regarding the location of the temples, this Court feels that the grievance of the petitioner is misconceived. 27. The petitioner cannot contend that only if the temple is located in the same place, the fundamental rights guaranteed under Article 25 and 26 of the Constitution of India would be safe guarded. By no stretch of imagination, it could be concluded that by relocation of the temple, the rights guaranteed under Article 25 and 26 of the Constitution of the India would be infringed. Even after relocation in a more comfortable space, the devotees including the petitioner can worship the God. If only the State Government intends to prevent or try to interfere with the religious practices/propagation of religion the rights guaranteed under Article 25 and 26 of the Constitution of India would be infringed. Even the rights conferred under Article 25(1) is