IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 10-04-2008 CORAM: THE HON'BLE MR.JUSTICE C.NAGAPPAN A.S.NO.263 of 1998 1.The Commissioner, H.R. & C.E. Admn. Department, Nungambakkam High Road, Chennai-34. 2.The Deputy Commissioner, H.R. & C.E. Admn. Department, Coimbatore. 3.The Assistant Commissioner, H.R. & C.E. Admn. Department, Karungalpalayam, Erode. .. Appellants / Defendants 1, 2 & 3 Vs Sri Visalakshi Sametha Sri Viswanathaswamykoil, Veerapandi, Gobichettipalayam, rep. by its Managing Fit Person, L.Rajamani Gobichettipalayam Town, on behalf of Gobichettipalayam, Veerapandi Village and adjoining Smartha Brahmin Community. .. Respondent/Plaintiff Appeal filed against the Judgment and decree passed in O.S.No.101 of 1991 dated 29.08.1997 on the file of the Sub- Court, Gobichettipalayam. For Appellants : Mr.T.Chandrasekaran Special Government Pleader (HR & CE) For Respondent : Mr.S.V.Jayaraman Senior Counsel for M/s.K.Ramachandran and J.Rajendren J U D G M E N T This appeal is preferred against the Judgment and decree https://hcservices.ecourts.gov.in/hcservices/ dated 29.08.1997 passed in O.S.No.101 of 1991 on the file of the Sub-Court, Gobichettipalayam. The defendants are the appellants. 2. The respondent herein/Plaintiff filed the suit seeking for a decree declaring the Plaintiff temple as a denominational temple belonging to the members of the Smartha Brahmin Community in and around Veerapandy Village and to grant permanent injunction restraining the defendants from interfering with the management of the suit temple and its properties by the members of the Smartha Brahmin Community either by implementing the order of the third defendant dated 8.4.1991 or by any means. The case of the Plaintiff temple is that it was founded and constructed by the members of the Smartha Brahmin Community residing in and around Veerapandy Village, Gobichettipalayam solely for their worship and it is owned, managed and administered by them for several generations. It is further stated in the plaint that the Smartha Brahmin Community has been electing some members of their community from among themselves to the committee of the Management and a Chairman as Managing Trustee for the administration of the temple and its properties. According to the plaintiff, the plaintiff-temple is a denominational temple intended for the worship and benefit of the Smartha Brahmin Community people alone and they have got the sole and absolute right of worship of the said deity. It is further stated in the plaint that the erstwhile Hindu Religious and Charitable Endowments Board in its order No.1031 dated 24.03.1942 in O.A.No.229 of 1941 held that the Plaintiff temple was founded by the Smartha Brahmin Community of Veerapandy and the temple was to be one for the benefit of the said community and hence, the defendants have no manner of right to interfere with the management of the Plaintiff temple and its properties. It is further stated by the plaintiff that by order dated 27.10.1966, an Executive Officer was appointed by the second defendant herein and it was set aside by the first defendant in R.P.112/69 on the ground that the temple is a denomination temple and knowing fully about it, the third defendant sent a communication dated 08.04.1991 appointing Anantha Padmanabhan of defendant's department as Thakkar. According to the Plaintiff, the third defendant has no jurisdiction to pass such order and the appointment is contrary to usage and custom and affect the fundamental rights of the community. Hence, the suit. 3. The Defendants in their written statement have stated that even if the Plaintiff temple is a denominational one, it is governed by the Provisions of H.R. & C.E. Act, 1959 and as per Section 47(1), the fit person (Thakkar) can be appointed by the department and hence, Anantha Padmanabhan was appointed as Thakkar and his appointment is legal and not contrary to law https://hcservices.ecourts.gov.in/hcservices/ and the Plaintiff temple does not belong to any single individual and it is a public temple coming under the purview of provisions of H.R. & C.E. Act . It is further stated in the written statement that the present Managing Trustee of the temple was originally appointed as a Trustee by the proceedings of the second Defendant dated 18.05.1982 and the suit is not maintainable and liable to be dismissed. 4. The trial Court framed four issues. The Plaintiff temple examined P.W.1 and marked Exs.A1 to A6 on its side. D.W.1 was examined and Exs.B1 to B10 were marked on the side of the defendants. On a consideration of oral and documentary evidence, the trial Court held that the Plaintiff temple is entitled to the declaratory relief and the relief of permanent injunction and decreed the suit as prayed for without costs. Challenging the same, the Defendants have preferred the present appeal. For the sake of convenience, in this Judgment, the parties are referred to as arrayed in the suit. 5. The Points for determination in this appeal are:- 1. Whether the plaintiff-Temple is a denominational temple as claimed and whether it is entitled for the relief of declaration. 2. Whether the plaintiff-Temple is entitled for the relief of permanent injunction as sought for against the defendants. POINT NOS.1 AND 2:- 6. The learned Special Government Pleader (H.R. & C.E) for the appellants submits that the respondent/plaintiff has not proved the case pleaded by it and the Trial Court has failed to appreciate the evidence in proper perspective and hence the judgment is vitiated. 7. Per contra, Mr.S.V.Jayaraman, learned Senior Counsel appearing for the respondent, submits that the plaintiff has adduced acceptable evidence to prove that the plaintiff-Temple was founded by the Smartha Brahmin Community residing in and around Veerapandy Village, Gobichettipalayam and as an Institution run by the religious denomination, it is entitled for protection under Article 26 of the Constitution of India and the conclusion of the Trial Court is based on evidence available on record and the judgment and decree have to be sustained. 8. To substantiate the case of the plaintiff, much reliance is placed on Exs.A1 and A2. Ex.A1 is the copy of the Order No.1031, dated 24.3.1942, passed by the Board of Commissioners for Hindu Religious Endowments, Madras in O.A.No.229 of 1941 in the matter of the plaintiff-Temple. The Board, after considering thirteen documents, listed as enclosure to the order, has passed the following order:- https://hcservices.ecourts.gov.in/hcservices/ "The application under this is under Sec.84 of the Act requesting the Board to declare the above Temple as an Excepted Temple. The petition recites that the Temple was built in or about 1870 and founded by the Smartha Brahmin Mahajanas of the village of Gobichettipalayam. It is also mentioned that the founders prescribed the line of management by providing for the election of some among themselves to form a Committee to be in management of the Temple and its properties. In our view the fact that a Community founded the Temple and the management was entrusted to individuals who are to be there after an election, will cut at the very root of any claim to Hereditary right. Having gone through the Documents we have no hesitation in saying that the Temple was intended to be one for the benefit of the Smartha Brahmin Community. In the view that we hold, although we declare the Temple to be a non-excepted Temple we find that in as much as the Temple was founded for the benefit of a particular Community, the trustees chosen must come out of that Community. In the result, the Temple is declared non-excepted." 9. Ex.A2 is the copy of the order, dated 25.11.1969, passed by the Commissioner, H.R. & C.E. (Administration) Department, Madras in the Revision Petition in R.P.No.112 of 1969 and that Revision Petition was filed by and on behalf of the plaintiff-Temple under Section 21 of the Madras Hindu Religious and Charitable Endowments Act, 1959 against the order of the Deputy Commissioner H.R. & C.E, Madras in R.C.No.12964/66 CE dated 27.10.1966 posting a common Executive Officer for the plaintiff-temple and some other temples. The Commissioner, in Ex.A2 order, has allowed the Revision petition and set aside the order of the Deputy Commissioner appointing a common Executive Officer. 10. P.W.1 L.Rajamani is the Managing Trustee of the plaintiff-temple and he has stated that the members of the Smartha Brahmin Community residing at Veerapandy Village, Gobichettipalayam Taluk founded and constructed the temple for the worship of members of the community and it is owned and managed and administered by the community for generations and the temple has already been declared as one belonging to the community in the year 1942 itself by Ex.A1 order and on the ground that it is a denominational temple, the order posting a common Executive Officer was set aside in the year 1969 by Ex.A2 order and Ex.A3 order of the third respondent, dated https://hcservices.ecourts.gov.in/hcservices/ 8.4.1991, appointing a Fit person to the plaintiff-temple is invalid in law and calling for applications for appointment of Trustees under Ex.A4 notice, dated 24.12.1996, is also not valid. 11. The case of the defendants, in the written statement, is that the plaintiff-temple is a public temple and even if it is a denominational one, it comes under the purview of the provisions of Hindu Religious and Charitable Endowments Act and under Section 47(1) of the Act, a Fit Person can be appointed till the regular Trustees are appointed. D.W.1 Thangaraj is an Inspector in the H.R. & C.E. Department and according to him, the plaintiff-Temple was submitting their accounts of receipts and disbursements for the Audit of the Department and the temple is under their supervision and public are worshipping in it. Exs.B3 to B5, B9 and B10 are the accounts submitted by the plaintiff and Exs.B6 and B7 are the proceedings of the second defendant issued in the year 1983, pertaining to the plaintiff-temple. 12. It has already been declared by the defendants in the year 1942 itself under Ex.A1 order that the plaintiff-temple was founded and managed by the Smartha Brahmin Community of the village of Gobichettipalayam. Following the above, the first defendant has passed the order under Ex.A2 in the year 1969, reiterating the status of the plaintiff-temple. As rightly held by the Trial Court, the plaintiff has adduced oral and documentary evidence to prove its case with regard to the relief of declaration sought for in the plaint. 13. The plaintiff has also sought for permanent injunction restraining the defendants from interfering with its management of the temple either by implementing the order dated 8.4.1991 passed by the third defendant or by any means. Ex.A3 is the order dated 8.4.1991 appointing a Fit Person to the plaintiff- temple and it has to be seen as to whether such an appointment is permissible on the facts of this case in the light of Article 26 of the Constitution of India. In this regard, the learned Special Government Pleader relies on the decision of the Division Bench of this Court, dated 21.3.2000 in Writ Appeal No.372 of 1999 in SRI KANYAKA PARAMESWARI AMMAN TEMPLE AND CHARITIES, PANRUTI, REP. BY ITS MANAGING TRUSTEE N.PANDURANGAN CHETTIAR Vs. ASST. COMMISSIONER, HINDU RELIGIOUS AND CHARITABLE ENDOWMENTS, CUDDALORE AND ANOTHER. The Division Bench has considered the applicability of the provisions of the Tamil Nadu Hindu Religious and Charitable Endowments Act to the denominational temples by referring to the decision of the Constitution Bench of the Supreme Court in COMMISSIONER, HINDU RELIGIOUS ENDOWMENTS v. LAKSHMINDRA THIRTHA SWAMIAR OF SRI SHIRUR MUTT (AIR 1954 SUPREME COURT 282) and the subsequent decision of the Apex Court in SRI KANYAKA PARAMESWARI ANNASATRAM COMMITTEE AND OTHERS v. COMMISSIONER, https://hcservices.ecourts.gov.in/hcservices/ HINDU RELIGIOUS & CHARITABLE ENDOWMENTS DEPTT. AND OTHERS (1999 (7) Supreme Court Cases 666) and has summarised the law as follows: " 4. The position in law as of now, therefore, is that while the appellant may well be an institution run by a religious denomination - the community which runs it being one which has been found by another court of a neighbouring State to be one which was entitled to be regarded as a religious denomination, appointment of an Executive Officer to such an institution would not be prohibited. It would be permissible, if such an appointment were to be made without contravening the denomination's rights under Article 26. The appointment of an Executive Officer or a fit person could be regarded as justifiable only if the secular activities of the institution have been so mismanaged as to warrant an inference that the continuance in office of those managing its affairs would be harmful to the very institution and to safeguard the institution, the appointment of an Executive Officer or fit person is necessary." 14. It has to be seen as to whether a case warranting such an appointment has been made out in so far as the plaintiff- temple is concerned. In the written statement, the defendants have not alleged any mismanagement of the plaintiff-temple. D.W.1 Thangaraj, in his oral testimony, also has not stated about any act of mis-management. The appointment of Fit Person under Ex.A3 order is not made on the ground of mis- management of the plaintiff-temple. No circumstance warranting the appointment of a Fit Person is made out. The Law is well settled that the appointment of Fit Person or Executive Officer to a denominational temple will be justified only if there is any mismanagement of secular activities warranting such an appointment. In the absence of any such circumstance, the plaintiff is entitled to the prayer of permanent injunction in so far as Ex.A3 order is concerned. 15. The plaintiff has also prayed for grant of permanent injunction restraining the defendants from interfering with the management of the suit temple by any means. As already seen, in the event of any mismanagement of the suit temple, it is always open to the defendants to take action as provided under law and hence the plaintiff is not entitled for the above prayer and that portion of the decree granting the above prayer has to be set aside. The Points 1 and 2 are determined accordingly. https://hcservices.ecourts.gov.in/hcservices/ 16. In the result, the appeal is partly allowed and that portion of the decree of the Trial Court granting permanent injunction restraining the defendants from interfering with the management of suit temple by any means is set aside and there shall be a decree declaring the plaintiff-temple as a denominational temple belonging to the members of the Smartha Brahmin Community in and around Veerapandy Village, Gobichettipalayam Taluk and also permanent injunction restraining the defendants from interfering with the management of the plaintiff-temple and its properties by implementing the order passed by the third defendant in Reference No.4392/91 dated 8.4.1991. There shall be no order as to costs. Vks Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To 1. The Subordinate Judge, Gobichettipalayam. 2. Do through the Principal District Judge, Erode. 3.The Commissioner, H.R. & C.E. Admn. Department, Nungambakkam High Road, Chennai-34. 4.The Deputy Commissioner, H.R. & C.E. Admn. Department, Coimbatore. 5.The Assistant Commissioner, H.R. & C.E. Admn. Department, Karungalpalayam, Erode. 6. The Section Officer, V.R.Section,High Court, Madras. • 1 cc to Mr. K. Ramachandran, Advocate SR No. 20161 + 1 cc to the Government Pleader, SR No.20491 ASM(CO) SR/13.6.2008 A.S.No.263 of 1998 https://hcservices.ecourts.gov.in/hcservices/