IN THE HIGH COURT OF JU+DICATURE AT MADRAS DATED: 30.9.2011 Coram: THE HONOURABLE MRS.JUSTICE CHITRA VENKATARAMAN and THE HONOURABLE MR.JUSTICE M.JAICHANDREN W.A.Nos.3526 and 3527 of 2004 Arulmighu Karaneeswarar Temple rep. by its Executive Trustees 1. N.Annamalai 2. R.Dhanasekar 3. D.Sridar Petitioners saidapet, Chennai-15 .. Appellant in both the writ appeals vs. 1. The State of Tamil Nadu rep. by its Secretary to Government Religious Endowment Department Fort St. George Chennai – 600 009 2. The Special Commissioner Hindu Religious and Charitable Endowments Department Nungambakkam, Chennai – 34 3. The Assistant Commissioner (Chennai) Hindu Religious and Charitable Endowment Department Nungambakkam, Chennai - 34 4. The Executive Officer Arulmighu Mahalakshmi Thirukoil Besant Nagar, Chennai – 90 .. Respondents/Respondents in both the writ appeals https://hcservices.ecourts.gov.in/hcservices/ W.A.No.3526 of 2004: This Writ Appeal is filed under Clause 15 of Letters Patent against the order of this Court dated 23.7.2004 in W.P.No.15468 of 2003. PRAYER WP.NO.15468/2003 Writ petition praying to issue a Writ of certiorari calling for the records relating to the order of the I respondent in GO ID No.105 Tamil Development and culture and reliqious endowment Department dated 16.5.2003 and the consequential order of the 2 respondent in his Na.Ka 100869/2000 L5 dated 20.5.03 and quash the same. W.A.No.3527 of 2004: This Writ Appeal is filed under Clause 15 of Letters Patent against the order of this Court dated 23.7.2004 in W.P.No.15469 of 2003. Prayer WP.No.15469/2003 Writ petition praying to issue a writ of certiorari calling for the records relating to the order of the I respondent in GO (ID) No 106 Tamil Development and culture and reliqious Endowment Department dated 16.5.2003 and the consequential order of the 2 respondent in his Na Ka 14182/98/A1 dated 20.05.2003 and quash the same. For appellant : Mr.V.Ayyadurai in both the writ appeals For respondents: Mr.V.S.Sethuraman Additional Advocate General I assisted by Mr.S.Kandaswamy Special Government Pleader (H.R. & C.E.) for R1 to R3 Mr.A.K.Sriram for M/s.Kailasam Associates for R4 C O M M O N J U D G M E N T (The Judgment of the Court was made by M.JAICHANDREN,J.) Since, the issues involved in both the writ appeals are similar in nature, they have been taken up together and a common https://hcservices.ecourts.gov.in/hcservices/ judgment is being passed. 2. The above writ appeals have been filed challenging the common Judgment of this Court, dated 23.7.2004, made in W.P.Nos.15468 and 15469 of 2003. 3. The writ petition, in W.P.No.15468 of 2003, had been filed by the petitioners therein, who are the appellants in the present writ appeals, praying for a writ of Certiorari to quash the order of the first respondent made in G.O.(1D) No.105, Tamil Development and Culture and Religious Endowments Department, dated 16.5.2003, and the consequential order of the second respondent, in Na.Ka.No.100869/2000/L5, dated 20.5.2003, disposing of the appeal relating to the appointment of an Executive Officer for the administration of the appellant temple. 4. The writ petition, in W.P.No.15469 of 2003, had been filed praying for a writ of Certiorari challenging the order of the first respondent, made in G.O. (1D) No.106, Tamil Development and Culture and Religious Endowments Department, dated 16.5.2003, and the consequential order of the second respondent, in Na.Ka.No.14182/98/A1, dated 20.5.2003, relating to the appointment of a 'Takkar' due to the expiry of the term of office of the trustees of the appellant temple. 5. The learned Single Judge of this Court, by his common Judgment, dated 23.7.2004, had dismissed the writ petitions holding that the appointment of an Executive Officer cannot be held to be invalid, as it is within the powers of the second respondent to make such an appointment, as per the provisions of the Tamilnadu Hindu Religious and Charitable Endowments Act, 1959. It had also been held that the scheme framed by the Subordinate Court, Chengalpet, in O.S.No.43 of 1919, relating to the administration of the appellant temple, had been modified. Unless the modification made had been successfully challenged, it would not be open to the appellants to challenge the appointment of the executive officer for the administration of the appellant temple. 6. The appellants have challenged the common judgment of this Court, dated 23.7.2004, raising various grounds. https://hcservices.ecourts.gov.in/hcservices/ 7. It has been stated that the learned Single Judge of this Court had failed to note that, as per the decree of the civil court, dated 2.3.1974, made in O.S.No.6784 of 1971, the appellant temple had been declared as a religious denomination belonging to Saiva Sengunthar community of Thirukaranai Village and that it had the exclusive right of managing the affairs of the temple without the interference of the Hindu Religious and Charitable Endowments Department. The said decree having become final, it would not be open to the authorities concerned to appoint an Executive Officer to manage the affairs of the appellant temple, by invoking the provisions of the Tamilnadu Hindu Religious and Charitable Endowments Act, 1959. 8. It had also been stated that the appellants, who were the executive trustees of the temple, had not been given an opportunity to represent their case before the impugned order had been passed appointing the Executive Officer to manage its affairs. There was no proper application of mind by the second respondent before the order made in G.O.(1D) No.105, Tamil Development and Culture and Religious Endowments Department, dated 16.5.2003, had been passed, especially, when the executive trustees had been elected, on 27.10.2002, for managing the affairs of the appellant temple, for a period of three years. While so, the appointment of a 'Takkar' by the second respondent is clearly in violation of the decree passed by the Civil Court. The authority concerned does not possess the power to appoint an Executive Officer, under Section 64 of the Tamilnadu Hindu Religious and Charitable Endowments Act, 1959. 9. It had been further stated that the appellant temple having been declared as a religious denominational institution, as per the decree of the Civil Court, no further declaration is necessary describing its character. As such, the impugned orders had been issued in violation of Article 26 of the Constitution of India. The appointment of an Executive Officer, by the second respondent, under Section 45(1) of the Act, cannot be held to be valid in the eye of law, in view of the declaration that the appellant temple is a religious denominational institution, as per the scheme decree of the Civil Court framed in O.S.No.43 of 1919. https://hcservices.ecourts.gov.in/hcservices/ 10. The learned counsel appearing on behalf of the appellants had further submitted that Section 64 (5) of the Tamilnadu Hindu Religious and Charitable Endowments Act, 1959, empowers the Joint Commissioner to modify the scheme framed by the concerned Court. Section 118(2)(a) of the Act would apply only in respect of a scheme framed under the Tamilnadu Hindu Religious and Charitable Endowments Act, 1959, and it would not apply to a scheme framed prior to the coming into force of the said Act. Since, the scheme decree, relating to the administration of the affairs of the appellant temple, had been framed in O.S.No.43 of 1919, by a decree, dated 23.4.1924, the Joint Commissioner would have no jurisdiction to modify such a scheme. 11. The learned counsel appearing on behalf of the appellant had stated that the State has got the power only to regulate secular activities and not the religious activities of the appellant temple. As per the decree of the concerned civil Court, the administration of the appellant temple is vested with the trustees of the temple, who are belonging to the Saiva Sengunthar community of Thirukaranai village. The decree cannot be modified by an executive order issued under the provisions of the Tamilnadu Hindu Religious and Charitable Endowments Act, 1959. Any such modification would be non est in the eye of law. In such circumstances, any interference by the authorities in the administration of the appellant temple, by invoking the provisions of the Tamilnadu Hindu Religious and Charitable Endowments Act, 1959, cannot be held to be valid. He had relied on the decision, in PANNALAL BANSILAL PITTI Vs. STATE OF A.P. (1996) 2 SCC 498), in support of the said contention. In the said decision, the Supreme Court had held as follows: Hindus are majority in population and Hinduism is a major religion. While Articles 25 and 26 granted religious freedom to minority religions like Islam, Christianity and Judaism, they do not intend to deny the same guarantee to Hindus. Therefore, protection under Articles 25 and 26 is available to the people professing Hindu religion subject to the law therein. The right to establish a religious and charitable institution is a part of religious belief or faith and, though law made under clause (2) of Article 25 may impose restrictions on the exercise of that right, the right to administer and maintain such institution cannot altogether be taken away and vested in another party; more particularly, in the officers of a secular https://hcservices.ecourts.gov.in/hcservices/ Government. The perennial and perpetual source to establish or create any religious or charitable institution or endowment of a specific endowment is the charitable disposition of a pious persons or other benevolent motivating factors, but to the benefit of indeterminate number of people having common religious faith and belief which the founder espouses. Even a desire to perpetuate the memory of an philanthropist or a pious person or a member of the family or founder himself may be the motive to establish a religious or charitable institution or endowment or specific endowment. Total deprivation of its establishment and registration and take over of such bodies by the State would dry up such sources or acts of pious or charitable disposition and act as disincentive to the common detriment. With a view to effectuate the object of the religious or charitable institution or endowment or specific endowment and to encourage establishment of such institutions in future, making the founder or in his absence a member of his family to be a chairperson and to accord him major say in the management and governance would be salutary and effective. The founder or a member of his family would, thereby, enable to effectuate the proper, efficient and effective management and governance of charitable or religious institution or endowment or specific endowment thereof in future. It would add incentive to establish similar institutions. Sections 17 and 29(5) are grounded on the findings of the report of Challa Kondaiah Commission, which indicated mismanagement and misutilisation of funds of charitable and Hindu religious institutions and endowments in a big way. This is, however, a general finding; all the charitable and religious institutions may not be painted with the same brush. There would be charitable or religious institutions in the State which are neither mismanaged nor is there misutilisation of funds. Even so, if the legislature acted on the general findings recorded by the Commission, due weightage has to be given to the same. The board of trustees should be headed either by the founder or a member of his family, would go a long way in seeing the fulfilment of the wishes and desires of https://hcservices.ecourts.gov.in/hcservices/ the founder. Sections 17 and 29(5) cannot, therefore, be faulted. Whatever rigour these sections have, would be duly get softened by the requirement of the board being headed by the founder or any of his family members, as the case may be. These provisions have to be read down accordingly. Subject to this rider, the validity of these two Sections are upheld." 12. It had been further stated that the authorities concerned can act in accordance with the provisions of the Tamilnadu Hindu Religious and Charitable Endowments Act, 1959, only in respect of religious institutions of a public character. However, they would have no power or jurisdiction to deal with the administration of the religious institutions, which are private in character. As such, the respondents have no authority to appoint an executive officer or a fit person to manage the affairs of the appellant temple, which is a religious denominational institution, as per the scheme decree, dated 23.4.1924, made in O.S.No.43 of 1919, under Section 92 of the Civil Procedure Code. Further, the denominational character of the appellant temple has been clearly pronounced in the judgment, dated 2.3.1974, made in O.S.No.6784 of 1971, on the file of the II Assistant City Civil Court, Chennai. 13. It had also been submitted that the requirements of Sections 70 and 71 of the Act should have been complied with, by the authorities concerned, before appointing an executive officer in respect of the appellant temple. It had also been submitted that no modification of the original scheme, framed in respect of the appellant temple, would have been done validly, except by approaching the concerned civil court. 14. The learned counsel had further submitted that, as per the provisions of Section 65, only the Commissioner Hindu Religious and Charitable Endowments Department, could settle a scheme for the proper administration of the religious institutions concerned, whereas, the impugned order has been passed by the first respondent, contrary to the provisions of the Tamilnadu Hindu Religious and Charitable Endowments Act, 1959. Further, a fit person cannot be appointed, contrary to the provisions of the Tamilnadu Hindu Religious and Charitable https://hcservices.ecourts.gov.in/hcservices/ Endowments Act, 1959, as well as the scheme decree. The fit person has been appointed, without having proper reasons to do so, especially, when the appellant temple was being administered by the duly elected trustees, by way of an election, held as per the scheme decree. If there is any mismanagement of the religious institution, it would be open to the authorities concerned to initiate appropriate action under the provisions of Chapter VI of the Tamilnadu Hindu Religious and Charitable Endowments Act, 1959. Whereas, the first and the second respondents have not passed the impugned orders under the provisions of the said chapter, even if the appointment of a fit person is found to be necessary for the administration of the appellant temple. 15. The learned counsel had also submitted that the impugned orders passed by the first and the second respondents have not taken into consideration the relevant provisions of the Tamilnadu Hindu Religious and Charitable Endowments Act, 1959, including Sections 64, 65, 105 and 118 of the Act. Further, the impugned orders are contrary to the right of religious freedom recognised under Articles 25 and 26 of the Constitution of India and the relevant provisions of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959. Even if there was a necessity to appoint a fit person, the authorities concerned should have appointed a person only from the Sengundar Mudaliar community. As such, the impugned orders are arbitrary, irrational and invalid in the eye of law. 16. The learned counsel appearing on behalf of the appellants had relied on the following decisions in support of his contentions: 16.1 In TEKI VENKATA RATNAM Vs. DY. COMMR., ENDOWMENTS (2001 7 SCC 106), the Supreme Court had held that, when a dispute arises as to whether an institution is a religious institution or whether a temple is a public or a private temple, under Section 87 read with Sections 2(22) and 2(27), the Deputy Commissioner has power and jurisdiction to enquire into and decide such a dispute. The Deputy Commissioner exercises quasi- judicial power while holding enquiry and deciding a dispute under Section 87(1). The Deputy Commissioner has jurisdiction to enquire into and decide the dispute covered by clauses (a) to (g) of sub-section (1). Sub-section (6) has sufficient indication that in such an enquiry, there will be presumption that the institution or endowment is a public one and burden https://hcservices.ecourts.gov.in/hcservices/ lies on the person claiming the institution or endowment to be private. If the argument that the Act does not apply to private temples is to be accepted, then it is enough for any person or body to claim a temple as a private one so as to take away the power and jurisdiction otherwise conferred on the Deputy Commissioner under Section 87 of the 1987 Act. A merely self- serving design of a party to claim a temple as a private one cannot defeat a specific statutory provision conferring power on a authority to decide a question. It is a different matter, if there is no dispute that a particular temple is a private temple. 16.2. In PANNALAL BANSILAL PITTI AND OTHERS Vs. STATE OF A.P. AND ANOTHER (1996) 2 SCC 498), the Supreme Court had held as follows: "25. But immediate question is whether taking away of the management and vesting the same in the board of non- hereditary trustees, constituted under Section 15, is valid in law. It is seen that the perennial and perpetual source to establish or create any religious or charitable institution or endowment of a specific endowment is the charitable disposition of a pious persons or other benevolent motivating factors, but to the benefit of indeterminate number of people having the common religious faith and belief which the founder espouses. Even a desire to perpetuate the memory of an philanthropist or a pious person or a member of the family or founder himself may be the motive to establish a religious or charitable institution or endowment or specific endowment. Total deprivation of its establishment and registration and take over of such bodies by the State would dry up such sources or acts of pious or charitable disposition and act as disincentive to the common detriment. 26. Hindus are majority in population and Hinduism is a major religion. While Articles 25 and 26 granted religious freedom to minority religions like Islam, Christianity and Judaism, they do not intend to deny the same guarantee to Hindus. Therefore, protection under Articles 25 and 26 is available to the people professing Hindu religion, subject to the law therein. The right to establish a religious and charitable institution is a part of religious belief or faith and, though law made under clause (2) of Article 25 may impose restrictions on the exercise of that right, the right to administer and maintain such institution cannot altogether be taken away and vested https://hcservices.ecourts.gov.in/hcservices/ in other party; more particularly, in the officers of a secular Government. The administration of religious institution or endowment or specific endowment being a secular activity, it is not an essential part of religion and, therefore, the legislature is competent to enact law, as in Part III of the Act, regulating the administration and governance of the religious or charitable institutions or endowment. They are not part of religious practices or customs. The State does not directly undertake their administration and expend any public money for maintenance and governance thereof. Law regulates appropriately for efficient management or administration or governance of charitable and Hindu religious institutions or endowments or specific endowments, through its officers or officers appointed under the Act. 27. The question then is whether legislative declaration of the need for maintenance, administration and governance of all charitable and Hindu religious institutions or endowments or specific endowments and taking over the same and vesting the management in a trustee or board of trustees is valid in law. It is true, as rightly contended by Shri P.P. Rao, that the legislature acting on the material collected by Justice Challa Kondaiah Commission amended and repealed the predecessor Act 1966 and brought the Act on statute. Section 17 of the predecessor Act of 1966 had given power to a hereditary trustee to be the chairman of the board of non-hereditary trustee. Though abolition of hereditary right in trusteeship under Section 16 has already been upheld, the charitable and religious institution or endowment owes its existence to the founder or members of the family who would resultantly evince greater and keener responsibility and interest in its proper and efficient management and governance. The autonomy in this behalf is an assurance to achieve due fulfillment of the objective with which it was founded unless, in due course, foul in its management is proved. Therefore, so long as it is properly and efficiently managed, he is entitled to due freedom of management in terms of the deed of endowment or established practice or usage. In case a board of trustees is constituted, the right to preside over the board given to the founder or any member of his family would generate feeling to actively participate, not only as a true representative of the source, but the same also https://hcservices.ecourts.gov.in/hcservices/ generate greater influence in proper and efficient management of the charitable or religious institution or endowment. Equally, it enables him to persuade other members to follow the principles, practices, tenets, customs and sampradayams of the founder of the charitable or religious institution or endowment or specific endowment. Mere membership along with others, many a times, may diminish the personality of the member of the family. Even in case some funds are needed for repairs, improvement, expansion etc., the board headed by the founder or his family member may raise funds from the public to do the needful, while the executive officer, being a Government servant, would be handicapped or in some cases may not even show interest or inclination in that behalf. With a view, therefore, to effectuate the object of the religious or charitable institution or endowment or specific endowment and to encourage establishment of such institutions in future, making the founder or in his absence a member of his family to be a chairperson and to accord him major say in the management and governance would be salutary and effective. The founder or a member of his family would, thereby, enable to effectuate the proper, efficient and effective management and governance of charitable or religious institution or endowment or specific endowment thereof in future. It would add incentive to establish similar institutions. 28. Keeping this pragmatic perspective in consideration, the question that emerges is: whether Sections 17 and 29(5) are valid in law. Reading down the provisions of an Act is a settled principle of interpretation so as to sustain their constitutionality, as well as for effectuation of the purpose of the statute. With the above in mind, we may examine the validity of Section 17 and 29(5). These statutory provisions are grounded on the findings of the report of Challa Kondaiah Commission, which indicated mismanagement and misutilisation of funds of charitable and Hindu religious institutions and endowments in a big way. This is, however, a general finding; and we are prepared to agree with the learned counsel for the petitioners that all the charitable and religious institutions may not be painted with the same brush. We have no doubt that there would be charitable or religious institutions in the State which are neither mismanaged nor there is misutilisation of funds. Even so, if the legislature acted on the general findings recorded by the https://hcservices.ecourts.gov.in/hcservices/ Commissioner, due weightage has to be given to the same. Our view that the board of trustees should be headed either by the founder or a member of his family, would go a long way in seeing the fulfillment of the wishes and desires of the founder." 16.3. In SRI ADI VISHESHWARA OF KASHI VISHWANATH TEMPLE, Vs. STATE OF U.P (1997) 4 SCC 606, the Supreme Court had held that though the performance of certain duties is part of the religion and the person performing the duties is also part of the religion or religious faith or matters of religion, it is required to be carefully examined and considered to decide whether it is a matter of religion or a secular management by the State. This multiplicity is not contrary to on-dualism. The protection of Articles 25 and 26 of the Constitution is not limited to matters of doctrine. They extend also to acts done in furtherance of religion and, therefore, they contain a guarantee for rituals and observances, ceremonies and modes of worship which are integral parts of the religion. The religion undoubtedly has its basis in a system of beliefs which are regarded by those who profess religion to be conducive to the future well-being. It is not merely a doctrine. It