IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 15.09.2009 Coram : THE HONOURABLE MR.JUSTICE K.RAVIRAJA PANDIAN and THE HONOURABLE MR.JUSTICE T.RAJA Writ Appeals Nos.181 to 183 of 2009 M.Ps Nos.1 to 4 of 2009 in WA No.181 of 2009 M.P. No.1 of 2009 in WA No.182 of 2009 and M.P. No.1 of 2009 in WA. No.183 of 2009 Sri Sabhanayagar Temple, Chidambaram, represented by its Secretary Podhu Dheekshadhars, Appellant in all Chidambaram. the writ appeals v. 1. The State of Tamil Nadu, represented by its Secretary, Department of Tamil Development, Religious and Information Department, Fort St. George, Chennai. 2. The Commissioner, Hindu Religious and Charitable Endowment Department, Nungambakkam High Road, Chennai 600 034. Respondents 1 & 2 in all the appeals 3. P.Sathiyavel Murugan Respondent 3 in WA 181 & 183/2009 4. U.Arumugsamy Respondent 4 in WA No.181 of 2009 & Respondent 3 in WA No.182 of 2009 5. Dr.Subramania Swamy Respondent 5 in WA No.181 of 2009 6. V.M.S.Chandrapandian Respondent 6 in WA No.181 of 2009 International Sri Vaishnava Dharma Sasrakshna Society, rep. By its President Swami Govindaramanuja Dasa Respondent 5 in W.As.182 &183/09 (Respondents 5 & 6 in WA No.181 of 2009 and Respondent 5 in W.As. Nos.182 & 183 of 2009 are impleaded as per order of this Court dated 15.09.2009 in the M.Ps.) https://hcservices.ecourts.gov.in/hcservices/ Writ Appeals filed under clause 15 of the Letters Patent against the order of a learned single Judge of this Court dated 02.02.2009 made in writ petition No.18248 of 2006; M.P.No.2/2006 and M.P.No.1/2008. W.P.No.18248 of 2006 : Petitioner presented to this court under Article 226 of Constitution of India to issue a writ of certiorari calling for the records of the 1st Respondent made in G.O.Ms.(D).No.168 dated. 9.5.2006, on the file of the 1st Respondent and quash the same. For appellant : Mr.G.Rajagopalan, Senior Counsel, for M/s.K.Bhavatharini For respondents : Mr.S.Ramasamy, 1 & 2 in WAs.Nos. Additional Advocate General II, 181 to 183/2009 assisted by Mr.T.Chandrasekaran, Special Government Pleader (H.R. & C.E.) and Mrs.N.Kavitha, Government Advocate For respondent 3 in WAs.Nos.181 & 183 of 2009 : Mr.S.Senthilnathan For respondent 4 WA No.181/2009 & for respondent 3 Mr.R.Gandhi, Senior Counsel, in WA.No.182/09 : for Mr.R.Sagadevan For Petitioner in MP No.2 of 2009 in WA No.181/2009 : Dr.Subramania Swamy For Petitioner in MP No.4 of 2009 in WA No.181/2009 : Mr.R.Sankara Subbu For Petitioner in MPs 1/09 in WA.182/09 & 2/09 in WA 183/09 : Swami Govindaramanuja Dasa Party in Person JUDGMENT Writ Appeal No.181 of 2009 is filed against the order of the learned single Judge dated 02.02.2009 made in writ petition No.18248 of 2006. The other two appeals in Writ Appeals Nos.182 and 183 of 2009 are filed against the orders of the learned single Judge impleading respondents 3 and 4 in the writ petition by order https://hcservices.ecourts.gov.in/hcservices/ dated 02.02.2009 made in M.P. No.2 of 2006 and M.P. No.1 of 2008 in writ petition No.18248 of 2006. 2. 'Iswara' as Lord Siva is generally worshipped in a particular form known as 'Linga'. The Word 'Linga' in Sanskrit means a symbol. If all forms in the creation were put together that would form an indefinable form which is symbolised by 'Linga'. 3. The vedas reduce all forms to five constituent elements called the "pancha mahabutas", viz., five great elements, they are "Akasa-Space; Vayu-Air; Agni-Fire; Apah-Water and prithivi-Earth". There are five temples in India where Lord Siva is invoked in each of the five elements. At Chidambaram temple, Lord Siva is worshipped as the element of space. At Kalahasdi temple, in Andhra Pradesh, sivalingam as well as a lamp with a constant flame implying the presence of air is worshipped as element of air. At Tiruvannamalai Arunachaleeswara temple, Lord Siva is worshipped as Agni, fire. At Jambukeswara temple located at Tiruvannaikaval, at Tiruchirappalli, Lord Siva is worshipped as the element of water. At Kancheepuram, sivalingam is made of earth and is worshipped as the element of earth. 4. The Chidambaram Temple contains an altar which has no idol. In fact, no Lingam exists but a Curtain is hung before a wall, when people go to worship, the curtain is withdrawn to see the 'Lingam'. But the ardent devotee will feel the divinely wonder that Lord Siva is formless i.e., space which is known as "Akasa Lingam". Offerings are made before the curtain. This form of worshipping space is called the "Chidambara rahasyam", i.e., the secret of Chidambaram. The Chidambaram Temple is also famous for its deity, Lord Nataraja, the "dancing Siva". This temple was built with Granites in an area of about 40 acres. It has massive high walls with four towers (Rajagopurams) in all four directions. There is a pond called "Sivaganga Theertham" having measured about 175 x 100 feet. There are 108 Bharathanatya models (dance postures) from Natya Sasthra fixed in the Rajagopurams. 5. Of the five temples of Siva, when all four ancient sacred Siva Temples are under proper care and efficient administration of the Board, the Podhu Dikshidars at Chidambaram Sabhanayagar Temple alone are fighting with no end against the Board since 1885, and thereby reducing the great ancient Sri Sabhanayagar temple financially crunched and the temple's unique & architectural structures left unattended due to this endless court proceedings. 6. As early as in 1885, a suit was filed by the Dikshidars of Sri Sabhanayagar Temple at Chidambaram (hereinafter referred to as 'temple' for short) raising a question as to whether the temple at Chidambaram is a public institution or private temple. The first native Judge of British India Hon'ble Mr. Justice Muthuswani Ayer sitting with Hon'ble Mr. Justice Shephard, in the judgment dated 17.03.1890 in A.S.No.108 and 159 of 1888 declared the temple as a place of public worship from time immemorial in the presidency and accordingly held that the Board has got jurisdiction to frame https://hcservices.ecourts.gov.in/hcservices/ scheme under section 63 of the Madras Hindu Religious Endowment Act of 1923, (Act I of 1925). This is seen in an old judgment reported in 1939 (2) MLJ 11 (Ponnuman Dikshitar Vs. The Board of Commissioners for the Hindu Religious Endowments, Madras). 7. The second controversial question which arose for consideration by the Division Bench of this court under section 62 of the Madras Hindu Religious Endowment Act (11 of 1927), was also answered therein by precisely holding even in the year 1939, more than 160 years back, that once the Board takes action suo moto under section 62, even though, it may ultimately find that there was no mismanagement, nevertheless, it can frame a scheme, if it is necessary for the proper administration of the temple. 8. In the year 1927, when the Hindu Religious Endowment Act of 1923 (Act I of 1925) came into force, on behalf of the Dikshidars of the temple, a memorial was submitted to His Excellency the Governor in Council, Fort St.George, in which they referred to the history of the temple, its endowments and the usages obtaining therein. On that basis, the Podhu Dikshidars requested the Government to grant exemption to the temple from the operation of the Act by virtue of the power under section 2 of the said Act. This request of the appellant was granted by the Government in G.O.No.3750 (L. and M.) dated 28th August 1926, exempting the temple, from the operation of provision of Madras Hindu Religious Endowments Act (Act I of 1925) except sections 38, 57, 58, 59, 64, 65, 66, 69 and 70. Section 38 deals with hereditary trustees; section 57 deals with submission of budgets and annual accounts; sections 58 and 59 related to schemes; sections 64, 65 and 66 to finance and contribution and sections 69 and 70 to the removal of a trustee and costs. 9. In the year 1931 some of the worshippers of the temple moved the Board to frame a scheme and the Board started a proceedings to frame a scheme in O.A.No.644 of 1931, but owing to some technical defects, the proceedings were dropped. However, in view of frequent complaints, the Board took up the matter suo motu in O.A.No.73/1932 and settled a scheme on 08.05.1933. 10. The scheme directed the establishment of Hundials for collections of offerings and the introduction of the chit system for Archana. The Podhu Dikshidars immediately instituted a suit in OS.No.16 of 1933 in the District Court, South Arcot, questioning the scheme. 11. The learned District Judge in the year 1936 itself confirmed the correctness of the scheme with a slight modification by a decree dated 09.09.1936. In the said scheme, the trusteeship was vested in the Podhu Dikshidars. The managing committee was enjoined to appoint a manager subject to the approval of the Board on salary basis, and to establish hundials for the deposit of voluntary and compulsory offerings and also to fix the rates for the performance of archana and special worship. Their duties were defined under the scheme. They were required to lease out temple https://hcservices.ecourts.gov.in/hcservices/ properties invariably by public auction. They are bound to maintain accounts and the Board was authorised to appoint one or more of the worshippers as Honarary Trustees who shall attend to the inspection of the accounts, ascertain whether the Kattalais are being performed regularly and bring to the notice of the managing committee, any irregularities in such matters. The committee was required to prepare a list of jewels and submit a copy of the same to the Board. 12. During the pendency of the suit and before the judgment was pronounced by the District Court, the exemption granted in 1926 was annulled and the Board attempted to notify the temple by proceedings dated 01.05.1936, under the Act. A Division Bench of this Court, having seen that a scheme was framed in 1933 and proceedings relating to this notification were pending in District Court, directed the Board to drop the proceedings to notify the temple and accordingly, the said proceedings were dropped. 13. In the year 1951, since mounting pressures came from various worshippers and public to notify this temple, the Board once again, after hearing objections from the Podhu Dikshidars by order dated 21.03.1951, decided to notify the temple as they were satisfied that a case for such a step was made out. Again, an appeal was preferred before the Full Board and it was disposed of by an order of the Full Board dated 11.7.1951. 14. This was immediately followed by notification dated 31.08.1951 and the Government also approved the proposed action of the Board for appointment of Executive Officer and issued a notification dated 28.08.1951. Under the new Act, the Government published the notification declaring the institution to be subject to the provision of Chapter VI of the Act. 15. The order of the Board in the first instance deciding to notify the temple proceeded on the following grounds : (i)that though there was a scheme already framed by the Board and finalised by the Court in 1933, it came into force on 1st June 1939, the register of the jewels was not maintained and was not made available for the inspection of the officers of the Board; (ii)that the temple was in a bad state of repair; (iii)that the Dikshitars did not take steps to enforce the Podhu Kattalais; (iv)that no steps were taken to recover the possession of the Tiruvilakku manyam lands; (v)that chit system for archanas was not introduced; (vi)that the vacant sites of the temple were not leased out properly; (vii)that the electrical lighting arrangements in the temple were insufficient; (viii)that the drains around the temple and inside the shrines were not kept in a sanitary condition; (ix)that the D.C.B was not maintained and so on which are https://hcservices.ecourts.gov.in/hcservices/ enumerated seriatum in the annexure to the Board's Order dated 21.3.1951. 16.These objections were not at all answered by the Dikshidars in their reply. Therefore, the Full Board and the Board which considered the matter in the first instance, agreed in concluding that there were acts of mis-management established which necessitated notification of the temple. 17. In the second round of litigation. in view of mal- administration and mis-management of the funds, and also the movable and immovable properties of about several hundred acres of land, of course, on the complaints made by some of the Podhu Dikshidars, the Government of Tamil Nadu passed G.O.Ms.No.894, Rural Welfare Department, dated 28.08.1951 declaring the temple as Public Temple. In order to enforce the provisions of the Act, the temple was notified under Chapter VI(A) under section 65 of the Act. Once again, the said G.O. was challenged in Writ Petitions Nos.379 and 380 of 1951 by some of the Dikshidars and the notification was quashed by the judgment dated 13.12.1951. 18. After three decades, once again the problem of mis- management was brought to the notice of the Government by several worshippers. The mismanagement pointed out were - non-accounting of gold articles received as 'kaanikkai' to the temple; that non- accounting of gold ingots coins worth Rs.2.2 lakhs kept in the Karuvoolam (Treasury) and detected by the Assistant Commissioner in the presence of the Revenue Divisional Officer, Chidambaram and Deputy Superintendent; that there was also loss of 860 grams of Gold in melting the gold jewels; that the donations and contributions given in the name of temple were not properly utilised for the purpose for which it was donated; and that there were misappropriation of huge Hundial moneys donated by lakhs of worshippers visiting the temple everyday. 19. In view of several complaints touching upon the mis- management and mis-handling of temple properties - both movable and immovable, the Government issued notice in R.C.No.52754/1982/B6 dated 20.07.1982 to the secretary of the Podhu Dikshidars pointing out the above irregularities in the administration of the temple and its properties and the proposal to appoint Executive Officer. As usual, the Podhu Dikshidars again challenged the said notice by way of filing W.P. No.5638 of 1982 before the High Court, Madras. The learned single Judge of this Court having seen that no show cause notice was given, directed the parties concerned to treat the notice dated 20.07.1982 as show cause notice and not as a decision and accordingly ordered the Writ Petition directing the Podhu Dikshidars to give proper explanations to the said show cause notice. 20. Pursuant to the said direction, the Secretary of Podhu Dikshidars have filed their bald reply on 09.01.1984, without answering any of the specific allegations made therein. https://hcservices.ecourts.gov.in/hcservices/ Thereafter, an enquiry was conducted by the Commissioner. One of the contentions raised by the Podhu Dikshidars was that the appointment of Executive Officer would be interfering with their Constitutional rights guaranteed under Article 26 of the Constitution of India. However, the Commissioner after affording full opportunity to both parties and after taking note of the serious lapses on the part of the Podhu Dikshidars in not properly accounting of the revenue of the temple, movable and immovable properties, has passed the order dated 31.07.1987 appointing Executive Officer. It is pointed out that the appointment of Executive Officer is only to look after the administration of the temple and the management of the properties alone and that will not mean interference with the rights of Dikshidars relating to religious practices in the temple. The Executive Officer assumed the charge of the temple on 10.08.1987. Aggrieved by that order dated 31.07.1987, W.P.No.7843 of 1987 was filed before this Court. When the matter came up for consideration, though this Court declined to grant stay of the appointment of Executive Officer, but granted stay of Rule 3 which gives powers and duties of the Executive Officer. 21. The Writ Petition filed in the year 1987 challenging the appointment of Executive Officer was taken up in 1997, after 10 years, and during this interregnum period, in view of the stay granted, the Podhu Dikshidars were in full enjoyment of the temple management and administration. When the learned Single Judge indicated to the Writ Petitioner/appellant to challenge the correctness of the order appointing the Executive Officer by way of Revision under Section 114 of Hindu Religious and Charitable Endowments Act, the same was opposed by the petitioner/appellant herein by objecting that more than 10 years had been lapsed, and therefore, going back before the Revisional Authority would not serve their purpose. Therefore, the learned Single Judge after considering the matter afresh came to the conclusions that the Writ Petitioner/appellant herein are in possession of several hundred acres of land belonging to the temple, collected rents from the tenants, but they have not accounted all the lease amounts either to the Executive Officer or to the Court, as directed, which means that the offerings made by devotees were swallowed by them and the gold articles and jewels belonging to the deity were not properly accounted; that the donations received from the worshippers have not been properly accounted, that the direction of the Court that every three months end or quarterly end, they have to account for the money, offerings and gold jewellery of the temple, submit a regular account to the Executive Officer, has not been complied with by the appellant and dismissed the Writ Petition. The learned single Judge further held that it could be detrimental to the devotees and Public in interfering with the order of appointing the Executive Officer, who was appointed for better management and effective administration of the temple. Aggrieved by that order, the Podhu Dikshidars/ appellant herein filed W.A.No.145 of 1997. When the Writ Appeal was finally taken up on 01.11.2004, nearly seven years from the date of disposal of the Writ Petition, smartly a peculiar prayer, diametrically opposed to what was argued before https://hcservices.ecourts.gov.in/hcservices/ the learned single Judge, was placed before the Division Bench praying that the Writ Petitioner/appellant herein wanted to file a Revision petition before the Government under section 114 of the HR & CE Act. It is to be noted that the Podhu Dikshidars were enjoying the benefit of interim order granted during the pendency of the Writ Petition as well as in the Writ Appeal. 22. The Division Bench had allowed the prayer of Writ Petitioner/appellant herein to go back before the Revisional Authority by setting aside the order of the learned single Judge passed on merits, however the Division Bench directed the Podhu Dikshidars to submit periodical accounts to the Executive Officer. 23. When the Revision Petition was taken up by the Revisional Authority on 09.05.2006 by noting that the Podhu Dikshidars from the date of the appointment of Executive Officer did not care to cooperate with the Executive Officer and further noting that the Podhu Dikshidars miserably failed even to comply with the order of the Division Bench directing them to submit periodical accounts to the Executive Officer, dismissed the Revision Petition on merits. Aggrieved by the order of the Revisional Authority, the Podhu Dikshidars again initiated another round of proceedings by filing Writ Petition No.18248 of 2006 under Article 226 Constitution of India, challenging the order passed by the Government of Tamil Nadu in G.O. Ms.No.168 dated 09.05.2006. During the pendency of the writ petition, respondents 3 and 4 got themselves impleaded in the writ petition. The Writ Court, after hearing the parties and after examination of various allegations of mis-management, dismissed the writ petition by reason of the order impugned in Writ Appeal No.181 of 2009. The order of impleadment of respondents 3 and 4 is challenged in Writ Appeals Nos.182 and 183 of 2009. 24. The learned single judge after extensively discussing various aspects, allowed the impleading applications filed by respondents 3 and 4 viz., Mr.P.Sathiyavel Murugan and Mr.U.Arumugasamy. Since the learned Single Judge has exercised the discretionary power in allowing the impleading application filed by respondents 3 and 4, this court declines to interfere with the well exercised discretionary power of the Writ Court. 25. Before us, three petitioners have filed four petitions for impleadment. M.P. No.2 of 2009 is filed by Dr.Subramania Swamy and M.P. No.4 of 2009 is filed by V.M.S.Chandrapandian for impleading them as party respondents in W.A. No.181 of 2009. M.Ps. Nos.1 in W.A. No.182 of 2009 and M.P. No.2 of 2009 in W.A. No.183 of 2009 are filed for impleading International Sri Vaishnava Dharma Sasrakshna Society, represented by its President Swami Govindaramanuja Dasa, as party respondent in Writ Appeals Nos.182 and 183 of 2009. 26. The petitioner in M.P. No.2 of 2009 Dr.Subramania Swamy claims that as the respondents 3 and 4 have already been impleaded by the learned single Judge, there would be no impediment for impleading him also as a party, he being a champion of public https://hcservices.ecourts.gov.in/hcservices/ cause. The petitioner in M.P. No.4 of 2009 V.M.S.Chandrapandian is a former Chairman of Chidambaram Municipality and was also a Member of the Temple Trust and well aware of the activities of the appellant. The petitioner in M.P. No.1 in W.A. No.182 of 2009 and M.P. No.2 of 2009 in W.A. No.183 of 2009 International Sri Vaishnava Dharma Sasrakshna Society, represented by its President Swami Govindaramanuja Dasa claims that as Lord Govindaraja Perumal Sannadhi is also in the temple, they are interested in the lis and they want themselves to be impleaded as party respondents. 27. Having heard the learned counsel appearing for the impleading parties and the other counsel in respect of impleadment, and having regard to the fact that respondents 3 and 4 have been impleaded in the writ petition itself, and also having regard to the nature of the lis, which is touching upon the religious sentiments of devotees of Lord Nataraja and Lord Govindaraja Perumal, we are of the view that strict or rigid rule of locus standi of the proposed respondents need not be put against them and they may be allowed to put forth their case which would, in a way, throw some light on the controversy. That would further the cause of justice. Hence, the petitioners in all the four petitions can be impleaded as party respondents and the Miscellaneous petitions are ordered accordingly. 28. Dr. Subramania Swamy, in his submission, after stating as to how he is interested in the lis, has averred about the history and administration of the temple and also the earlier judgment of this Court in Shirur Mutt’s case. The averments are materially the replica of the averments and arguments made by the appellant. On that ground he prayed for allowing the appeal. 29. The other impleaded parties, apart from stating about their association with the temple for a long number of years, averred about the mis-management alleged to have been committed by the appellant and prayed for sustaining the order impugned. 30. The learned senior counsel Mr.Rajagopalan appearing for the Writ Petitioner/Appellant herein submitted the following arguments : a)The Judgment In W.P. Nos.379 and 380 of 1951 dated 13.12.1951 is binding on the State Government and therefore the appointment of Executive Officer for the temple by order dated 31.07.1987 is illegal. b) The judgment of this court dated 13.12.1951 quashing the proceedings of the Government holding the order appointing Executive Officer is violative of right of Podhu Dikshidars will bind the respondents as Res Judicata. The same is not considered by the learned writ court. Therefore, the order of the learned Single Judge should be reversed. c) That the proceedings of the Government appointing the Executive Officer to the temple is against Articles 25 and 26 of the Constitution of India, since the appointment of Executive https://hcservices.ecourts.gov.in/hcservices/ Officer is directly interfering the right of administration of Podhu Dikshidars and the temple, and d) That the order dated 31.07.1987 appointing Executive Officer and confirmed by the Government by G.O.Ms.No.168, dated 09.05.2006 is without jurisdiction and hence the Writ Appeal should be allowed. 31. Per contra, the learned Additional Advocate General Mr. Ramasamy submitted the following points: The principles of res judicata under section 11 of the Code of Civil Procedure will not apply to this case. He further contended that the question as to whether the Podhu Dikshidars can be termed as 'denomination' was not the issue in the earlier case decided by