IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 16.04.2010 CORAM THE HONOURABLE MR. JUSTICE T.RAJA W.P. NO. 30898 OF 2008 AND M.P. NOS. 1 & 2 OF 2008 Vadakalai Sri Vaishnava Sampradaya Sabha, Kanchipuram, rep. by its Secretary, L.Ravi 45-A, Sannathi Street Kanchipuram – 3. .. Petitioner - Vs - 1. The Commissioner Hindu Religious & Charitable Endowments Dept. Chennai 600 034. 2. The Executive Trustee/Assistant Commissioner Arulmighu Devarajaswamy Thirukkoil Kanchipuram. 3. Perumal Koil Thennacharya Dharsana Sabha, rep. by its Secretary T.P. Srirangchari 61/51, North Mada Street Kanchipuram. 4. Thathadesika Thiruvamsasthar Sabha by its Secretary 35, Sannathi Street Kanchipuram. .. Respondents Writ petition filed for the issuance of a writ of certiorarified mandamus to call for the records of the 1st respondent in his proceedings in R.P. No.11/2007, quash the order passed by the 1st respondent in R.P. No.11/2007 dated 23.12.2008 and forbear the 2nd respondent from implementing the order of the 1st respondent dated 23.12.2008 passed in R.P. No.11 of 2007. For Petitioner : Mr. S.Parthasarathy, SC, for Mr. J.Ramakrishnan For Respondents : Mr. V.T.Gopalan, SC, for Ms. S.Radha Gopalan for R-3 Mr. T.Chandrasekar, Spl. GP for RR-1 & 2 No Appearance for R-4 https://hcservices.ecourts.gov.in/hcservices/ ORDER This is yet another round of litigation between the two sects of Vaishnavites – Vadakalai and Thenkalai. An interesting question of religious importance has arisen whether the Baktha Vigraha of Sri Manavala Mamunigal is entitled to visit his shrine on the 'Revathy' star day also? 3. Before proceeding into the messy issue, it is vital to know the background of this case so as to reach a fair conclusion on the issue. A festival by name 'Pagalpathu' and 'Rapathu' is being celebrated for 10 days in the Arulmigu Devarajaswami Thirukkoil in Kanchipuram. The first 10 days prior to 'Vaikunda Ekadesi' is called 'Pagalpathu' and the next 10 days starting from 'Vaikunda Ekadesi' is called 'Rapathu' and the entire festival, namely, 'Pagalpathu' and 'Rapathu' is collectively called 'Adhyayana Uthsavam'. The method of celebrating Pagalpathu and Rapathu has been explained by the HR & CE Board in its proceedings concluded in O.A. No.332/1941. According to the petitioner, who belongs to Vadakalai community, the Baktha Vigraha of Sri Manavala Mamunigal is entitled to visit his shrine on the day of his Thirunakshatram, i.e., monthly star 'Moolam'. On the other hand, the case of 'Tenkalai' community is that the Baktha Vigraha of Sri Manavala Mamunigal can be taken out to his shrine on the 'Revathy' star day, which is opposed by the 'Vadakalai' community. 4. Mr.R.Parthasarathy, learned senior counsel appearing for the petitioner submits that the Baktha Vigraha of any Alwar and Acharya should not be taken out on a day other than the day on which the birth star of the respective Alwars and Acharyas fall and if the star 'Moolam' is intervening during the said period of Pagalpathu festival, which is the star of Sri Manavala Mamunigal, the Baktha Vigraha of Sri Manavala Mamunigal will be taken down to its shrine and after completion of the rituals, the said Vigraha will be brought back to the Moolasthanam of Sri Devaraja Swami on the same day itself. The same practice has been in vogue from time immemorial till 1941 and after 1941, at the instigation of the Tenkalai community, the Executive Trustee of Arulmigu Devarajaswami Thirukoil and its Maniakarar are trying to take out the Baktha Vigraha of Sri Manavala Mamunigal on the day of the Revathy star contrary to the well established customs that was followed for about ages and, unfortunately, the Commissioner of HR & CE has modified the long standing religious customs and usage that was followed for several decades. Therefore, the petitioner filed a civil suit in O.S. No.139/2006 on the file of the Subordinate Judge, Kanchipuram, seeking an injunction to restrain the respondents, namely, the Executive Trustee and Maniakarar of Arulmigu Devarajaswami Tirukoil and P.V.S. Sampath from in any way taking the Baktha Vigraha of Sri Manavala Mamunigal every year to its the shrine during the Pagalpathu festival on any other day other than the monthly star of Moolam, more particularly on the Revathy monthly star. https://hcservices.ecourts.gov.in/hcservices/ The learned Sub Judge, having seen the chequered history behind the prayer made by the parties to the suit, came to the conclusion by issuing a direction to the petitioner to approach the Assistant Commissioner/Executive Trustee of Arulmigu Devaraja Swami Thirukkoil for necessary relief in the light of the direction given by the Commissioner in his order dated 3rd Nov., 2006. 5. Pursuant to the order passed by the Sub Court relegating the parties to approach the Assistant Commissioner/Executive Trustee, the parties approached the Assistant Commissioner/Executive Trustee. As per the directions issued by the learned Sub Judge, Kanchipuram, the Assistant Commissioner/Executive Trustee passed an order directing that no festival is to be conducted on the Revathy star day. After the order passed by the Assistant Commissioner/Executive Trustee prohibiting festivals on Revathy star day, in the year 2004- 2005, the 3rd respondent, Perumal Koil Thennacharya Dharsana represented by its Secretary, did not agitate over the same. 6. The grievance of the petitioner in the present writ petition is that the petitioner went before the Sub Court at Kanchipuram seeking an order for perfect implementation of the orders of the HR & CE Board passed in O.A. No.332/1941, which was also subsequently approved by the decree of the Sub Court, Chengalpet in A.S. No.147/1946. The temple authorities had not allowed any such festival on Revathy star day during the earlier years and that the said order became final, more particularly, when the same was not even challenged, the Sub Court, Kanchipuram, ought not to have relegated the parties to approach the HR & CE Department and the HR & CE Department, as against the order passed in O.A. No.332/1941 as confirmed in A.S. No.147/1946, has completely ignored the abovesaid orders by allowing the festival of taking out the Baktha Vigraha of Sri Manavala Mamunigal from the Moolasthanam during Pagalpathu festival. The order passed by the Commissioner, HR & CE Department, reversing the order passed by the Assistant Commissioner in R.P. No.11/07 dated 23rd Dec., 2008, consequently, forbore the 2nd respondent from implementing the order of the 1st respondent dated 23rd Dec., 2008, passed in R.P. No.11/07. 7. Mr.Parthasarathy, learned senior counsel, while assailing the impugned order passed by the Commissioner of HR & CE, forcibly urged that the impugned order is liable to be struck down for the reason that the Commissioner has miserably failed to appreciate the religious customs and usage being followed by devotees of both Vadakalai and Tenkalai community in celebrating the Pagalpathu festival in the Arulmigu Devarajaswami Thirukkoil without any interruption for several decades. Even though there were orders passed by the HR & CE Board in O.A. No.332/1941, the 4th respondent, has not even shown minimum respect to the order passed by the HR & CE Board in O.A. No.332/1941, which was also subsequently confirmed by the competent appellate court in A.S. No.147/1946 and also his own orders in R.P. Nos.84/03, 257/05 and 69511/06. Therefore, learned senior counsel contended that the present impugned order has to go as it is a complete violation of the earlier order passed by the HR & CE Board, as mentioned above. https://hcservices.ecourts.gov.in/hcservices/ Further, learned senior counsel contended that pursuant to the direction given by the Sub Court, the Assistant Commissioner/Executive Trustee perfectly passed the order in complete compliance of the order passed by the Board in O.A. No.332/1941 as confirmed by the appellate court in A.S. No.147/1946. When the said order was challenged by the 3rd respondent herein by filing a review petition, R.P. No.11/07, the Commissioner of HR & CE, while exercising a limited power vested u/s 121 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, has completely forgotten that there was no infirmity or violation of any provision of law or statute in the order of the Assistant Commissioner and the Commissioner travelled beyond the scope of revisional jurisdiction by reversing not only the order passed by the Assistant Commissioner, but also the order passed by the HR & CE Board in O.A. No.332/1941. Furthermore, the Commissioner, HR & CE has gone one step further to reverse the civil court judgment passed in A.S. No.147/1946. Such approach of the Commissioner, HR & CE is totally unwarranted as he has sat in appeal against the order passed by the HR & CE Board and also the judgment passed by the appellate court in A.S. No.147/1946. Finally, Mr.Parthasarathy, submitted that the 1st respondent, after being directed by the Sub Court, Kanchipuram, to decide the issue by keeping in mind the order passed in O.A. No.332/1941 as confirmed in A.S. No.147/1946, has no power at all to unsettle the orders passed by the Board in O.A. No.332/1941 and also the judicial order passed by the appellate court in A.S. No.147/1946, by way of an executive order and, on that basis, prayed for quashing the impugned order passed in R.P. No.11/07. 8. Mr.V.T.Gopalan, learned senior counsel appearing for the 3rd respondent submits that taking the Baktha Vigraha of Sri Manavala Mamunigal on the Revathy star day during the Pagalpathu festival is not contrary to the Board's order passed in O.A. No.332/1941, as several festivals, which are not covered by the Board's order have been allowed to be performed even without any objection from any quarter. Further, in his submission, he contended that the Commissioner has specifically ordered that the festival to be performed in the temple as per the customs and usage prior to the order passed by the Commissioner in R.P. No.84/03, shall continue to be performed. Whileso, the Board's order passed in O.A. No.332/1941 dated 3rd Feb., 1941, does not even mention as to how the Revathy star festival has to be performed. Therefore, the same was overruled by the then Executive Trustee by its order dated 24th Nov., 1953 and, thereafter, a civil suit in O.S. No.139/06 filed by the Vadagalai Sri Vaishnava Sampradaya Sabha seeking an order of injunction to restrain the Executive Officer/Assistant Commissioner of Arulmigu Devarajaswami Thirukkoil from conducting Revathy star festival was a collusive suit, barred by Section 108 of the HR & CE Act and in the said suit no order of injunction was passed. Therefore, the order passed by the Commissioner in R.P. No.11/07 D2 cannot be found fault with. The issue settled in the Board's order in O.A. No.332/1941 dated 3rd Feb., 1942, is only the procedure to be followed in taking out the procession of the deities of Alwars and https://hcservices.ecourts.gov.in/hcservices/ Acharyas, including Sri Manavala Mamunigal, particularly on the days of their respective Thirunakshatram for Sathumurai. The Board's order does not mention about any Thirunakshatram (birth star) other than that of Alwars and Acharyas. Even Revathy is the birth star of Sri Ranganatha Perumal, the deity, which is commonly worshipped by both Vadakalai and Tenkalai sects of Vaishnavaites and the same is also an admitted fact by both sides. The granite image of Lord Ranganatha Perumal has been installed in the sanctum sanctorum of Sri Manavala Mamunigal and such installation has not come under any protest. Though it was not consecrated, it is revered by all devotees as an idol of worship, since it is installed in the sanctum sanctorum of Sri Manavala Mamunigal. From the year 1953, at the request of the Tenkalai Vaishnavaites, there has been a customary practice of carrying the Baktha Vigraha of Sri Manavala Mamunigal from the Hill abode to the sanctum sanctorum where the idol of Lord Ranganatha Perumal has been installed during the Pagalpathu festival in the Tamil month of 'Margazhi' on the day on which the Revathy Nakshatram falls. Since this practice was continued without any interruption till the year 2003, for about 50 years, from the year 1953, Mr.V.T.Gopalan, learned senior counsel pleaded that the deity of Sri Manavala Mamunigal should be allowed to be taken in procession on the Revathy Nakshatram day to the shrine of Lord Ranganatha Perumal. Mr.Chandrasekar, learned Special Government Pleader appearing for the HR & CE Department also repeated the reasoning given by the Commissioner in the impugned order in support of his contentions. 9. Heard the learned counsel appearing on either side and perused the materials available on record. 10. Since the petitioner, who is Vadakalai sect, sought for a prayer to implement the order passed by the Board in O.A. No.332/1941 as affirmed in A.S. No.147/1946, let me see what was the order passed by the Board in O.A. No.332/1941 and what was the subject matter of appeal in A.S. No.147/1946 and its ultimate conclusion for the purpose of answering the question raised in the present writ petition. 11. Prima facie, the religious practice to take the Baktha Vigraha of Sri Manavala Mamunigal in procession during Pagalpathu and Rapathu festival has got a chequered history, emerging from 1820 onwards. The case records indicate that the trustees, who are Vadakalais, have been adopting an attitude of hostility to the Tenkalais and their saints ever since it was decided that the Tenkalai Mandram should be recited in the temple and it is the custom of the temple to celebrate Sathumurai festival of Alwars and Acharyas on the annual Thirunakshatram day of the saints and the Rapathu and Pagalpathu festivals during the first 10 days prior to Vaikunda Ekadesi and the 10 days succeeding Vaikunda Ekadesi. There was a specific grievance that the trustees have been committing breaches to trust by not celebrating the Sathumurai of Sri Manavala Mamunigal, a Tenkalai Guru and saint and also other Alwars and Acharyas, except those favoured by them out of sectarian prejudices. https://hcservices.ecourts.gov.in/hcservices/ One of the earliest documents, which was shown as Ex.M dated 14th Dec., 1990, indicate that there was an expenditure of Rs.7/- for each Acharya for doing Sathumurai for the four Acharyas, which indicates that Sri Manavala Mamunigal was also given the same honour as given to Sri Vedanta Desikar, while doing Sathumurai like Neivedyam, Parivattam, garlands, etc. In 1828, a suit was filed in O.S. No.231/1828 by the Vadakalais against the Archakas on the ground that they were interfering with the recital of Tamil Prabandham on the Vijayadhasami day in the Devarajaswami Temple. In the above said plaint, Exs.N of the year 1852 indicates that there were some expenses incurred for doing Sathumurai for Sri Manavala Mamunigal shrine, which shows that according to the usage, the temple followed Sathumurai, i.e., fulfilling certain usual poojas for the Baktha Vigraha of Sri Manavala Mamunigal. Again the documents filed in O.S. No.120/1852 on the file of the Mufti Sadr Amin Court also indicates that there appears to have been very many quarrels between the Vadakalai and Tenkalai sects in respect of performing Sathumurai on the Baktha Vigraha of Sri Manavala Mamunigal in his shrine. A decree came to be passed in the above suit, which indicates that the Tenkalai sect was entitled to perform archaka paricharkra miras in the Manavala Mamunigal shrine. Another piece of exhibit, Exs.1, 1-A and 1-B relating to O.S. No.858/1861 filed on the file of the Addl. District Munsif, Kanchipuram, viz., Ex.1, Plaint in the suit, Ex.1-A, written statement and Ex.1-B is the judgment therein, also indicate that about the year 1850 or earlier, the Baktha Vigraha of Sri Manavala Mamunigal had disappeared from the very temple itself. Subsequently, it was recovered from the temple's Pothamarai tank. After tracing out the idol of Sri Manavala Mamunigal, it was attempted to be installed, but there was huge objection raised to its installation. As per the prayer made in the above said suit, one truth came out that the idol disappeared for 8 years and 5 months, because one of the prayers made in the suit was to the effect that the Tenkalai sect made a prayer by claiming installation expenses and emoluments due to them for the previous 8 years and 5 months. However, the Court decreed that the Utsavar idol mentioned in the plaint was the old idol of Sri Manavala Mamunigal, but the other prayers made by the Tenkalai sect were rejected. This does not give answer to the present writ petition as to whether the Baktha Vigraha of Sri Manavala Mamunigal is entitled to the honour of visiting his own shrine during the Pagalpathu and Rapathu festival celebrated by the Devarajaswami Temple. 12. To find out a better picture, let me further proceed to find out what are the other documents available on record to answer the prayer in the present writ petition. In para-8 of the judgment in the suit filed in O.S. No.858/1861, Ex.D-3 dated 16th Feb., 1876, the Court stated that the Tenkalais intended to carry the Baktha Vigraha of Sri Manavala Mamunigal in procession through the streets unaccompanied by Devarajaswami, but the Court found that Sri Manavala Mamunigal had no street procession and that the plaintiffs had no right to institute new procession without the consent of the trustees. The said judgment was appealed against in A.S. https://hcservices.ecourts.gov.in/hcservices/ No.124/1876 in the District Court, Chengalpet and the appellate court held that Sri Manavala Mamunigal had no right of any procession independent to the principal deity and, finally, the suit for damages for loss sustained by stopping of the Samprokshana procession was rightly dismissed. The next document is Ex.III dated 24th Nov., 1880, which contains an application filed by the Tenkalai u/s 20 of Act XX of 1863 for sanction to file a suit against the Vadakalai trustees. One of the allegations made in the application was that the trustees refused to bring Devarajaswami to Sri Manavala Mamunigal shrine on the latter's Sathumurai day, but the District Judge rejected the said application. These two documents indicate that Sri Manavala Mamunigal was not enjoying public procession. After the decision in O.S. No.858/1861 refusing permission for the deity of Sri Manavala Mamunigal to be taken in procession, the parties resorted to reliefs before the criminal courts. Three old orders passed by the Court of Magistrate in the year 1880, 1881 and 1882, marked as Exs.III-a, III-b and III-c respectively require a careful perusal by this Court. Ex.III-a is an order passed by the 2nd Class Magistrate, Kancipuram, instructing the police to prevent the Tenkalais from taking Sri Manavala Mamunigal in procession even inside its shrine. Ex.III-b is an order of the Joint Magistrate of Chengalpet, directing the Tenkalai sect to have their rights established in a civil court, otherwise to give six months notice to Vadakalai sect indicating their intention to take out a procession so as to given an opportunity to the Vadakalai sect prohibiting the procession. Ex.III-c is a similar order on an application made by the Vadakalai sect for preventing the Tenkalai for taking out Sri Manavala Mamunigal in procession. 13. Again, being unsuccessful in the criminal courts, once again the Tenkalai Archakas filed civil suit in O.S. No.208/1883 on the file of the District Munsif Court, Tiruvallur. Subsequently, the same was transferred to Chengalpet and renumbered as O.S. No.105/1884. The plaint in O.S. No.105/1884 was marked as Ex.C-2. Two reliefs were prayed for, namely, (i) the right of procession, etc., of Sri Manavala Mamunigal and (ii) the procession of Sri Devarajaswami. It was claimed that Sri Manavala Mamunigal had the right of Alwar Pradakshinam procession during the first 9 days of the Sathumurai festival, but the suit was dismissed. It however reserved to the plaintiff the right to sue against obstruction of any festival of Sri Manavala Mamunigal, which does not involve an independent procession of the idol. Aggrieved by that, the Tenkalai sect unsuccessfully filed an appeal in the District Court, but the same was also dismissed. Yet again, unsuccessfully a second appeal also came to be filed in the High Court in S.A. No.1200/1887 and once again further attempt was made for getting review of the judgment and the same also proved unsuccessful. All these piece of evidence clinchingly provide one fact clearly that the Baktha Vigraha of Sri Manavala Mamunigal was not given the honour of procession during the annual Tirunakshatram festival. Another litigation started in O.S. No.744/1887 on the file of the District Munsif Court, Kanchipuram filed by the trustees for a declaration https://hcservices.ecourts.gov.in/hcservices/ that they, as the Dharmakarthas were entitled to superintendence of Sri Manavala Mamunigal shrine and of all the ceremonies, including Thirunakshatram, that the defendants, as archakas were not entitled to act independently and to carry the idol in procession in the Prakaram or outside it. Learned Munsif Court decreed that the trustees of the mentioned temple were entitled to the management and superintendence of Sri Manavala Mamunigal shrine subject to 2 to 6 defendants right to worship the idol in the said shrine and to conduct all ceremonies and festivals in the said shrine, including the annual Thirunakshatram and also granted an injunction restraining the defendants 2 to 6 from carrying the idol of Sri Manavala Mamunigal in procession outside its shrine, i.e., either in the Prakaram of the Devarajaswami Temple or outside the said Prakaram during the annual Thirunakshatram festival or at any other time. Aggrieved by the said decree passed by the District Munsif, the Tenkalai sect filed appeal in A.S. No.190/1900 and the Vadakalai sect also filed appeal in A.S. No.190/1900 in the District Court, Chengalpet. The appellate court modified the lower court's decree by deleting the injunction in regard to the procession. The Tenkalai sect also filed second appeal in S.A. Nos.137 and 138/1902 in this High Court and the trustees also filed S.A. No.269/1902. When these appeals came up for hearing, the learned Judges passed an order calling for a finding from the District Court in the suit relating to procession. Following the direction given by this Court, the District Court, after detailed enquiry, written its finding. 14. 14. By taking into account all the historical background, the Board in O.A. No.332/1941 had given its findings that between 1892 and 1897 and in the year 1915 and 1925 there were procession for Sri Manavala Mamunigal in the Alwar Pradakshinam. Besides they came to a final conclusion that the Tenkalai sect have a right to claim that the customary usage, as found in Ex.H should be directed to be followed by the trustees. In Ex.H, Mr.Swaminatha Iyer, the District Judge of Chengalpet, gave a finding, which was also approved by the High Court in favour of Tenkalai and on that basis, the Board reached a final conclusion that the Alwars and Acharyas, including Sri Manavala Mamunigal shall be taken in procession to Devaraja's shrine on the first day of Pagalpathu and shall remain there for 10 days. Should the Thirunakshatram of any Alwar or Acharya fall on any day during the period of Pagalpathu, the said Alwar or Acharya shall be taken to its own shrine in the morning of his Thirunakshatram day and back to Devaraja's shrine in the evening. All the Alwars and Acharyas, including Sri Manavala Mamunigal, shall be taken in procession through the Kottagai Mandapam and back to their shrine after receiving honours on all the 10 days of the Rapathu festival. Admittedly, the same was also confirmed by the appellate court in A.S. No.147/1946. 15. From the above background, it would be evident that initially the petitioner approached the civil court by filing a suit in O.S. No.139/06 seeking to implement the order passed by the Board of HR & CE in O.A. No.332/1941, as confirmed by the appellate court in A.S. No.147/1946. The sub court, having noticed the importance https://hcservices.ecourts.gov.in/hcservices/ of the prayer made by the parties, noted the order passed by the Commissioner in R.P. No.257/05 D2, which is given as follows :- “In page 16 of the Order, the Commissioner has observed as follows: “In case, any party is aggrieved in the manner of performance of Sathumurais and festivals other than fixing the dates of the Sathumurai of the festival, they can make a suitable representation to the Executive Trustee/Assistant Commissioner of the above temple.” From the above passage, it is clear that the relief sought for by the petitioner