HON’BLE ACTING CHIEF JUSTICE SRI B. PRAKASH RAO AND HON’BLE SRI JUSTICE R. KANTHA RAO W.P.Nos. 9004, 6609 and 9581 of 2010 AND W.P.M.P.Nos.12646, 13021, 13022, 13080, 13836, 13856, 19436, 27482 of 2010 in W.P.No.9004 of 2010 Date: 29-11-2010 W.P.No. 9004 of 2010: Between: Sri G. Raghava Reddy ….. Petitioner and Tirumala Tirupati Devasthanam Rep. by its Executive Officer and others ………… Respondents * HON’BLE ACTING CHIEF JUSTICE SRI B. PRAKASH RAO AND HON’BLE SRI JUSTICE R. KANTHA RAO + W.P.Nos. 9004, 6609 and 9581 of 2010 AND W.P.M.P.Nos.12646, 13021, 13022, 13080, 13836, 13856, 19436, 27482 of 2010 in W.P.No.9004 of 2010 % 29-11-2010 # Sri G. Raghava Reddy and others ……..Petitioners Vs. $ 1. Tirumala Tirupati Devasthanam Rep. by its Executive Officer and others ……..… Respondents ! Counsel for the Petitioners: Sri M.S. Ramachandra Rao, Dr. Subrahmanya Swamy (party-in- person). Sri R. Raghunandan, Mr. Shreyas Reddy, Smt. Sumalini Reddy, Sri T. Raghavan Thallapaka, Counsel for the Respondents: Additional Advocate General Advocate General, Government Pleader for Archaeology and Museums, Government Pleader for Endowments, Mr. Ponnam Ashok Goud, learned Assistant Solicitor General, Sri D. Prakash Reddy, Sri P. Ganga Rami Reddy < Gist: > Head Note: ? Cases referred: 1. (1954) SCR 1005 2. AIR 1957 MAD 658 3. (1964) 1 SCR 561 4. AIR 1954 SC 388 5. AIR 1958 SC 282 6. AIR 1959 SC 860 7. AIR 1958 SC 255 8. 1952 SCR 849 HON’BLE ACTING CHIEF JUSTICE SRI B. PRAKASH RAO AND HON’BLE SRI JUSTICE R. KANTHA RAO W.P.Nos. 9004, 6609 and 9581 of 2010 AND W.P.M.P.Nos.12646, 13021, 13022, 13080, 13836, 13856, 19436, 27482 of 2010 in W.P.No.9004 of 2010 COMMON ORDER: (Per ACTING CHIEF JUSTICE SRI B. PRAKASH RAO) Since the point for consideration in these three writ petitions is common, they are being heard together and disposed of by one order. W.P.No.9004 of 2010 2. This writ is filed under Article 226 of the Constitution of India by one Mr. G. Raghava Reddy, as a Public Interest Litigation case, praying to declare the provisions of Sections 97 and 97B of the A.P. Charitable, Hindu Religious Institutions and Endowments Act, 1987 as violative of Articles 25 to 27 of the Constitution of India and the action of the first respondent/Tirumala Tirupathi Devastanam (for short ‘TTD’) in passing resolution No. 456 dated 20-09-2008 for providing gold platting to the main sanctum and sanctorum as illegal and arbitrary. The Resolution No.456, dated 20-09-2008 reads as under: “Resolved to make Anandanilayam Swarnamayam in Sri T.T. by providing gold coating to the main sanctum sanctorum inside Sri Venkateswara Temple duly taking utmost care in preserving the rare inscriptions available on the walls of sanctum sanctorum duly taking the experts opinion as well as peethadipathis and Agama Pandits. SD/- D.K. Adikesavulu Naidu, Chairman, TTD Board” 3. In the affidavit filed in support of the writ petition, it is stated that the temple is protected by walls, which are known as prakaras, of which the first one is called ‘Vimana Prakaram’ and also called as ‘Anandanilaya Prakaram, the other two prakarams are around “Vimana Prakara”, which is stated to have been consisting 740 epigraphs or inscriptions, out of which some epigraphs are copied and some are yet to be copied. The inscriptions on the prakaras are of immense religious and cultural value. In the year 2005, there was a proposal to cover the Vimana Prakaram with gold by gold plating of 4’ X 2” copper sheet affixing it by bolts, which proposal was rejected keeping in view the opinion of Agama Advisers who decided it as against the Agama Sastras. Thereafter, the present resolution 20.9.2008 was passed. The petitioner alleges that before passing the subject resolution, the procedure is not followed and the same was passed unilaterally without consulting the Peetadhipathis and Agama Pandits and that there are no reasons mentioned for taking such a decision. The petitioner thus alleges that the subject project of gold plating is taken up only to fulfill the whims and fancies of the board, keeping aside the sentiments of the devotees. It is alleged that the proposal to gold plate the Vimana Prakaram is clearly an attempt to destroy the inscriptions on the prakaram by driving nails and heavy bolts causing damage to the prakaram and the temple as such. It is contended that the inscriptions on the prakaras are deemed to be ancient monuments, protected under the Ancient Monuments and Archaeological Sites and Remains Act (Central Act 24 of 1958), which provides that no unauthorized activity, which would affect or damage such inscriptions, is permissible without prior permission of the Central Government and that in the present case, admittedly, no such prior permission is taken from the Central Government. It is thus alleged that the first respondent, in spite of the advise of Agama Advisors that Gold Plating is in violation of Agama Sastra, is trespassing into religious affairs and passed the impugned resolution, which is illegal. 4. One Dr. M.V. Soundara Rajan filed W.P.M.P.No. 13856 of 2010 seeking to implead him as party respondent as an intervenor in the writ petition to assist the Hon’ble Court. In the accompanying affidavit filed along with the said WPMP, it is stated that he is hereditary trustee of Chilkuru Balaji Temple, which temple is popularly known as Telangana Tirumala, and that the impugned proceedings are affecting the sentiments of the temple goers not only of TTD but throughout the world and several devotees expressed their anguish and dismay at the hasty and unnecessary exercises now undertaken by TTD. It is stated that the procedure followed in the year 2005 for demolition of 1000 pillar mandapam viz., appointing a committee, making consultations and submission of report and consideration thereof, shall be done and the view of the Agama Sastras to be taken before proceeding with the subject project. The recurring expenditure for annual maintenance which is about Rs.200 crores, is not taken into account by the Board. The TTD has not explained as to how the gold plating will enhance the religious or spiritual value of the temple, more so, when the Vellore Temple administration admitted that they have done gold plating to attract the pilgrims. Hence, the subject project is not supported by religious or spiritual values or sentiments, but it is remarked as commercialized and propagandized exercise and very essence of the atmosphere of the temple would be lost. It is suggested that instead of the subject project, the safety of the temple to be considered in shifting the kitchen to a safer place. It is stated that there is no point in the argument that the sentiments of the donors for the subject project would be affected, inasmuch as the moment the donation is made, the donor loses any sort of right over the donation and any conditional gift is void. It is stated that there is widespread opposition for the subject project. He later filed an additional affidavit resting his plea referring to Articles 25 and 26 of the Constitution of India. 5. Writ in W.P.No.6009 of 2010 is filed by one Subramanian Swamy, as a public interest litigation, seeking to issue a Writ in the nature of Mandamus invoking Article 226 of the Constitution of India by setting aside the impugned Resolution No.456 dt. 20-9-2008 and its connected matters thereon insofar as application for the gold coating of Anandanilayam Swarnamayam in Sri Tirumala Temple by providing Gold Coating to the main Sanctum Sanctorum i.e., Gold Plating of the walls on the First Prakara or Vimana Pradhakshana in the Lord Venkateswara Temple in Tirumala, as illegal, unjustified violative and ultra vires of the Fundamental Right under Article 25 of the Constitution and under the provisions of A.P. Charitable and Hindu Religious Institutions and Endowment Act, 1987. The Board of Trustees (TTD Board) meeting was convened by the respondent in his capacity as Ex-officio member secretary on 20-9-2008 vide Resolution No.456 dated 20- 9-2008 to make Ananda Nilayam Ananthaswarnamayam by providing gold coating to the main Sanctum Sanctorum. Though W.P.No.27609 of 2009 was filed earlier by one Mr.P.Anantha Rama Sarma, which was dismissed in limine on 30-12-2009 for not pointing out any fundamental, statutory or Common Law Right is denied or aggrieved, the present writ petition is filed on different grounds of arbitrariness, unreasonableness and illegality. Several other eminent persons wrote letters seeking clarifications and among them was Mr.S.Vedantam of the Vishwa Hindu Parishad, who objected to the said proposal to gold coat the pillars in the sanctum sanctorum, the contents of which were published in local newspaper Andhra Jyothi. None of the letters were replied to by the TTD Board. On 26th October 2009, a news item was published reporting brewing of revolt amongst officers of TTD against the Resolution, which has enraged Mr.Adikesavulu, Board Chairman, and gold plating work had come to a stop. The petitioner states that he has locus, being the Convener of the Legal Cell of the Hindu Dharma Acharya Sabha, the national apex body of all senior sadhus and sanyasis. Among the other contentions, it was urged inter alia that; i. The resolution No.456 dated 20-9-2008 to make “Ananda Nilayam Ananthaswarnamayam” by Gold Coating violates the Circular No.23/77, dt.27-8-1977 in C.No.J3/8256/77 titled “Savings of Epigraphs in Temples” and ab initio is illegal, unreasonable and arbitrary. ii. The resolution also violates Circular No.37 dated 6-5-1976 and Official Circular No.29/71 dt.25-10-1971 for not being in conformity with Shilpa Shastras, Agama Shastras and for being entrusted to private companies. iii. The resolution lacks mandate from either the Andhra Pradesh Charitable and Hindu Religious Institutions & Endowments Act (1987) or the Rules issued under Section 97 r/w 153 of the said Act, under which Rule 13(1) lays down policy guidelines for passing such resolution, and the resolution is arbitrary and unreasonable. iv. The Resolution is violative and ultra vires of the Fundamental Right under Article 25 of the Constitution, since gold plating is not a secular activity or associated with any religious practice and it violates the Agama Shastras followed as the law guiding the construction of the temple. v. As the temple is being considered for world heritage status by the UNESCO, any construction altering the sacred character would attract the penal provisions of the IPC particularly under Section 295-A. vi. TTD being autonomous body, and for all the practical purposes since the Board has been constituted by the Government for TTD u/s 96 of the Endowment Act, the Board ought to have constituted a special committee under Rule 13(2) on this important matter. vii. Since Article 31A of the Constitution enables the State Government to administer the TTD only for a reasonably limited period, the TTD Board cannot make permanent change. 6. In W.P.No.9581 of 2010, the writ is filed by Dr.Sai Krishna, Trust Deputed Authority for Parameswara Seva Samithi (for short ‘PSS’) seeking to issue a Writ in the nature of Mandamus declaring the resolution and the proposed action pursuant thereto by the respondents as regards destroying/defacing the inscriptions/epigraphy relating to 9th to 17th century A.D on the stone walls of Ananda Nilayam, TTD, Tirupathi, as illegal and arbitrary and thereafter to declare gold plating vide Resolution No.456 dt. 20- 9-2008 as illegal, unjustified, arbitrary, violative of Articles 25, 49 and 253 of the Constitution of India and the provisions of A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1987 and against India’s cultural heritage. 7. The PSS is a non-profitable charitable trust focusing inter alia on integrated human resource development, legal aid, educational and medical support, promoting Indian heritage and it has started a school for visually challenged in Amalapuram. PSS has undertaken to publish literature aimed at promoting ancient Indian culture and heritage. PSS, after obtaining information about the resolution regarding the gold plating of walls, approached the respondent No.4/Andhra Pradesh Archeology and Museum and sought an explanation on its stand on the resolution, for which respondent No.4 informed PSS that its Director had already addressed a letter to Respondent No.3 vide RC.W2/391/2008 dated 26-04-2008 requesting the Board not to proceed with the scheme as it would have serious consequences. Though PSS has issued a detailed notice to Respondent No.2 on 26-2-2010, the respondent No.2 has not replied to the notice. The gold plating of Temple walls is in violation of Article 25 of the Constitution of India as the inscriptions will be destroyed/erased/defaced causing irreparable loss to the engraved inscriptions to the cultural heritage. There are 740 inscriptions/epigraphy on the temple walls some in Tamil, Grantha Characters, Telugu, Canarese and Devangari script dating back from 9th to 17th century AD. The inscriptions not only mirror the gifts of villages, jewels, money etc., made by the persons, but also reflect the socio- religious and economic insights of different time periods. The inscriptions differ from dynasty to dynasty and were signed by Pallava, Chola, Pandya, Khadavaraya, yadavaraya, Vijayanagara dynasties among others with the signs of Sun and half crescent Moon and the stars with a slogan “Aachandraarka taaram” signifying that the inscriptions shall remain as long as the Sun, Moon and stars exist in the universe. The inscription No.76 is extracted, which reads as under; “Hail, Prosperity, Sriman Maharajadhiraja Rajaparamesvara Muvarayaraganda Ariyaravibhata Ashtadikraya– manobhayankara Bhashaga- tappuvarayaraganda Purva-dakshina-paschima-samudradhisvara Yavanarajyasthapacharya Gajapativivibhata Sri Virapratapa Sri Vira Krishnaraya Maharaja, started from his capital Vijayanagara on an estern expedition, occupied the fort ‘Udayagiri captured Tirumala-Rautaraya Mahapatra in one single campaign, took Addanki, Vinikonda, Bellamkonda, Nagarjunikonda, Tangedu, Ketavaram, and other forts situated on hills and plaints, next marched to Kondavidu fortress, laid seize to it, erected square sheds round the fott, demolished the rampart walls, occupied the citadel, captured alive Virabhadraraya, son of Prataparudra Gajapathideva, Naraharidevu, son of Kumara Hamvirapatra, Rachuri Mallukhan, Uddandakhan, Janyala Kesavapatra, Pasupati Rachiraja, Srinatha Ramaraja, Lakshmipatiraja, Paschimabalachandra Mahapatra and other Manneyars (Zamindars), granted them their lives and proceeding to Dharanikota Amaresvara, in the presence of God Amaresvara on the banks of the river Krishveni, performed Tulapurusha Mahadana himself and causing his queens Chinnajidevi and Tirumalaidevi to offer Mahadanas (great gifts) with their own hands, returned to Vijayanagara, occupied the jeseled throne, ruled the kingdom and on the third day of the dark fortnight of the Kartika month in the cyclic year Yuva, current with the Seka era 1437, he (Krishnadevaraya) presented to God Tiruvengalanatha (Sri Venkatesa) a nava-ratna Prabhavali or Makara-torana set with nine kinds of precious stones consisting of ;- 25 Kirtimukha-leaves; 13,835 vommechchu beads; 16 weight of the gold wire; 7,978 weight of the solid gold; 20 silk fringes hanging on the head of the Makara-torana; and 5,474 weight of the above said gold fringes. Thus, making up a grant total of 27,287. The following nine kinds of gems are fixed in different parts of the (above said) Makara-torana:- 81 rubies; 10,994 red stones; 754 emeralds; 530 sapphires; 40 cat’s eyes; 45 agates; 74 topazes; 920 old diamonds; 3,933 pearls; 4 prominent sapphires fixed in the place of the eyes; 6 corals; and 30 conch-shells. Thus the total weight of the arch of the Makara-torana (described above) is 14,711; grand total of the whole prabhavaji (including the lower and the upper portions) being 31,124.” 8. Further research reveals that innumerable such inscriptions exist on the temple walls. Sri S.Subramanya Shastri, the Archaeologist of TTD having researched for 8 years has filed a report and thereafter Sri Subramanya Shastri and Vijayaraghavacharya have published 5 volumes of these inscriptions by translating them to English, which were printed by the TTD press from 1931 to 1937. The TTD if decided to enhance the artistic aura of the Temple it is always open to them to construct even solid gold walls within or outside the temple, but not to undertake to deface the inscriptions which causes irreparable damage to the cultural heritage. It has been thus contended that; a. Section 97 of the A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1987 mandates that the TTD Board shall exercise its powers and functions in relation to TTD’s administration having due regard to public interest. But by defacing the inscriptions, the Board is depriving the public of all opportunities to read. b. Fundamental right guaranteed under Article 25 will be violated if TTD Board implements the resolution. Article 49 mandates the State to protect every monument or place or object of historic interest, and the subject matter of resolution is not contemplated under any provision or Rule framed pursuant to the Act, and therefore, the entire gold plating exercise is unwarranted, arbitrary and illegal. c. Articles 51 (c ) and 253 of the Constitution highlight the importance attached to international law. Article 6 of the UNESCO Convention states that the State parties shall recognize that cultural heritage situated in its territory constitutes world heritage. The above Articles were given a go- bye while passing resolution. d. On 14-11-1977, India had ratified the Convention concerning the protection of the World Cultural and Natural Heritage and on 15-12-2006 Convention on Protection and Promotion of the Diversity of Cultural Expressions, which was adopted by the UNESCO on 20-10-2005. The above Conventions were given a go-bye while passing resolution. e. The Supreme Court and High Courts have consistently held that when domestic statutory provisions are silent, then the gap can be filled by relevant international conventions and as the Act or the Rules framed thereunder are silent on the issue concerning, the High Court may by looking to the texts of the foregoing international conventions, issue directions to frame relevant guidelines to ensure that the TTD Board preserve the ancient inscriptions/epigraphy on the temple walls and their culture. 9. In the counter affidavit of first respondent in W.P.No.9004 of 2010 which is sworn to by Mr.I.Y.R.Krishna Rao, Executive Officer, TTD/first respondent inter-alia averred that the writ petition is hit by the principles of res judicata inasmuch as self same resolution as impugned in this writ petition passed on 20-09-2008 was challenged in W.P.No.27609 of 2009 as a public interest litigation, which was dismissed by this Court by orders dated 13-12- 2009. The history and importance of the temple was stated. It is specifically stated that the subject project was taken up after securing the opinion of Agama Scholars, one of whom opined that the subject project is not opposed to the Agama Shastras. The TTD has taken steps and will ensure that the project sought to be undertaken will not cause any damage to the inscriptions since the gold plating will only be ornamental and will have a space of 1 ½ inch from the lipis and will not be touching the inscriptions and it would be flexible and can be removed at any time and apprehensions of petitioners are unfound and not supported by facts. The contentions of petitioners that the subject resolution was passed in hurry, that opinion of Agama Pandits was not taken, that the subject project is against the wishes of devotees, that the inscriptions on the walls would be damaged etc were specifically denied. It is specifically contended that a contract was awarded to an experienced contractor to oversee the project work with the help and guidance of Jewellery Technical Advisory Committee constituted by TTD. It is contended that TTD is not notified under Section 4 of Ancient Monuments and Archeological Remains Act, 1958 and that no damage would be caused or possible to the prakaram inasmuch as all the precautions are being taken. It is specifically contended that the proposed project would perhaps protect and preserve the walls and the inscriptions on them inasmuch as it would act as shelf to the walls from the natural elements and constant exposure to the pilgrims. Thus, it is contended that the allegations made by the writ petitioner deserves no consideration and writ petition is liable to be dismissed. 10. In the counter affidavit of second respondent in W.P.No. 9004 of 2010, Mr. K.V. Ramanachary/Principal Secretary to Government, Endowments Department, sworn to the affidavit. It is averred that the present writ petition seeking to espouse the public interest is not maintainable and it is belated one. It is stated that the counter affidavit is limited to the issue of challenge of Sections 97-A and 97-B of the A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1987. It is further stated that TTD is not constituted to regulate the religious affairs of the temple as sought to be contended by petitioners and the above referred provision is introduced by way of an amendment in 1991 and it does not in any manner infringe citizens right to freedom of conscience and right to propagate religion and the functions of the committee are within the permissible area of legislation permitted under Article 25 (2) of the Constitution. It is specifically contended that the subject project is fully funded by voluntary donations of the believers and pilgrims and the petitioner failed to substantiate his plea that Sections 97-A and 97-B of the Act 30 of 1987 are in any manner violate Articles 25 to 27 of the Constitution. 11. In the counter affidavit of third respondent in W.P.No.9004 of 2010 sworn to by Mr. K.Veerabhadra Rao/Superintending Archaeologist in Archaeological Survey of India, Hyderabad Circle, Hyderabad, in reply to para 12 of the writ affidavit, it is stated that the temple has heritage value and the inscriptions existing on the Vimana Prakara of Anandanilayam are worth preserving for posterity and that there may be severe threat to the inscriptions due to leakage of rain through the metal cover resulting in accumulation of moisture and dust between the copper plates and the inscribed stone surface. It may also encourage the growth of moss and lichen on the walls producing acids which are detrimental to the stone. For fixing copper plates holes need to be drilled on the surface of wall which may damage the stone inscriptions and there is every possibility of defacing the original ancient script and text which are the source material for reconstruction of history and cultural heritage of the glorious monument. Once the plates are affixed, there is no possibility of cleaning the surface at regular intervals or applying any preservative coat. It is further stated that TTD is not a protected monument of Archaeological Survey of India and the provisions of Act, 1958 are not applicable. 12. In the counter affidavit filed by Mr. D.K. Adikesavulu Naidu/Chairman, TTD/ implead party respondent no.5, who filed a Miscellaneous Petition seeking to implead him as party respondent to the writ proceedings in W.P.No. 9004 of 2010, on the ground that the resolution passed by the TTD Board is under challenge in the writ petition and he being the Chairman of TTD Board, is not made as party to the proceedings and hence he is necessary party. He filed a voluminous counter affidavit running about 34 pages, wherein initially he narrates the historical background of the temple and then referred to legislations of TTD stating that TTD Board was established in the year 1932 as a result of TTD Act, 1932, which was superseded by the Madras Hindu Religious and Charitable Endowments Act, 1951, which was further superseded by the A.P. Charitable and Hindu Religious Institution and Endowments Act, 1969, which in turn was superseded by A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1987. Subsequently, the Government of A P in the year 1989 through legislation brought in Hindu Charitable and Religious Institutions wherein Chapter IX exclusively deals with the TTD administration. The TTD is being managed by a Board of Trustees consisting of Representatives of the Government of A.P., Representatives of the Public and IAS officers. It is alleged that without knowing the full facts, the petitioner rushed to this court with personal interest rather than any public interest. It is further stated that based on the subject resolution, estimates have been prepared for the purpose of gold coating to outside walls of prakaram and inside walls of ‘Vaikunta Dwaram’ and that the entire project is estimated to cost about Rs.100 crores, which was approved by Jewellery Technical Advisory Committee of the temple, as