IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 06-03-2009 CORAM: THE HONOURABLE MRS. JUSTICE PRABHA SRIDEVAN AND THE HONOURABLE MR. K.K. SASIDHARAN W.A.Nos.117 of 2006 and 2146 of 2005 In W.A.No.117 of 2006: 1. Government of Tamilnadu rep. By its Secretary & Commissioner Commercial Taxes and Charitable Endowments Department Fort St. George Madras – 600 009 2. The Commissioner Hindu Religious and Charitable Endowments Administration Department, Mahatma Gandhi Adigal Salai, Nungambakkam Madras – 600 034 ... Appellants Versus 1. K. Sevanthinatha Pandarasannathi 2. R. Chinnasamy 3. R. Govindasamy 4. G. Sankaravadivelu ... Respondents In W.A.No.2146 of 2005: R. Chinnasamy ... Appellant Versus 1. K. Sevanthinatha Pandarasannathi 2. Government of Tamilnadu rep. By its Secretary and Commissioner, Commercial Taxes and Charitable Endowments Dept. Fort St. George, Madras – 9 3. Commissioner, HR & CE Mahatma Gandhi Road Nungambakkam Chennai 34 4. V. Sankaravadivelu ... Respondents https://hcservices.ecourts.gov.in/hcservices/ Writ appeals filed against the order passed in W.P.No.13122 of 1994 dated 12-09-2005 on the file of this Court. filed under Article 226 of Constitution of India to issue a writ of Declaration, declaring that the amendment Act 30 of 1994 HR&CE is ultra vires of the Constitution of India. For appellants in :: Mr. S. Ramasami, Addl. Adv. General W.A.117/06 and for for Mr. T. Chandrasekaran for HR&CE R2 &R3 in WA.2146/05 For appellant in W.A.2146/05 :: Mr.K.Chandrasekaran, For respondents :: For R1 in both :: Mr. A.L. Somayaji, Senior Counsel Appeals for Mr. R. Subramaniam & Mr. Sudhakar For R2 in :: Mr. R. Krishnamoorthy,Senior Counsel W.A.117/2006 for Mr. V. Ayyaduri R3-died, R4- No appearance JUDGMENT (PRABHA SRIDEVAN,J.) The Government amended the Tamil Nadu Hindu Religious and Charitable Endowments (Amendment) Act 1959 (H.R. & C.E. Act in short) by adding clause (aaa) to Section 26 by Act 30/84 with effect from 13-05-1984, disqualifying a person from being appointed as or from being a trustee of any religious institution if he is not a citizen of India. This clause was challenged by the writ petitioner with success and therefore, the State has filed this appeal. 2. The facts are as follows: On 03-04-1923, the Division Bench of this Court in A.S.Nos.121 and 122 of 1919 framed a scheme for administration of the Temple of Arulmighu Vedaranyaswamy Devasthanam. Clause 3 of the said decree vested the trusteeship of the Temple with Varani Adheenam consisting of a group of persons residing in Karanavai in the District of Jaffna, Ceylon as it was then called. Clause 5 of the decree vests the administration of the Devasthanam and all its affairs on the Managing Trustee appointed by the Varani Adheenam from among themselves. On 29-05-1956, the Deputy Commissioner, H.R. & C.E. initiated proceedings for framing the scheme. On 07-07-1957, the draft scheme was settled and its properties were vested in the hereditary trustee. There was objection to the appointment of the non-hereditary trustee. It was dropped and the hereditary trustee was also given the power to choose the Executive Officer. On 06-04-1963, the scheme dated 07-07-1957 was modified in O.A.No.60 of 1960. The administration continued to be with the hereditary trustee and the power to select Executive Officer was also preserved. On 01-02-1996, the Kadirkama Pandara Sannithi who was elected by the Varani Atheenam was recognized as Trustee. The incumbent died on 22.4.1987. On 11- 08-1987 by G.O.Ms.No.915 a fit person was temporarily appointed till a new trustee is nominated by the Varani Adheenam. On 24-08-1987, https://hcservices.ecourts.gov.in/hcservices/ the Varani Adheenam addressed a letter intimating that he had nominated K. Seventhinatha Pandarasannithi as the Trustee. On 23-12- 1987, the Deputy Commissioner, HR & CE recognised the above nomination. The appeal, A.P.No.1 of 1988 filed by one Kumaraswami Pandara Sannithi challenging the appointment of Seventhinatha Pandarasannithi as hereditary trustee was allowed on 18-07-1988 and the matter was remitted to the Deputy Commissioner. On 17-03-1999, the Deputy Commissioner appointed the first respondent as a fit person. On 30-10-1989, the Commissioner, HR&CE by a suomotu revision in 66/89 set aside the order of appointment of the respondent as a fit person. Against this a revision was filed under Section 114 which was also dismissed on 31-12-1990. Challenging this, W.P.No.2801 of 1991 was filed. The writ petition was dismissed and the learned Single Judge held that this was a fit case where the petitioner had to approach a Civil Court for a decision as to who has been validly elected. On 25-04-1991, the first respondent filed O.S.No.190 of 1991 seeking a declaration that he is a properly elected trustee. The rival claimant submitted to the decree. The suit was decreed. On 15-10-1991, the request of the first respondent for being recognised as a Managing Trustee was rejected by the Deputy Commisisoner. The first respondent thereupon filed R.P.No.39 of 1991 before the HR & CE which was dismissed. On 28-10-1992, Varani Adheenam again appointed the first respondent as Managing Trustee. On 31-12-1993, the amendment came into force which disqualified the first respondent from being a trustee since he is not a citizen of India. The learned Single Judge allowed the writ petition on the ground of discrimination. Aggrieved by the same, the writ appeals are filed both by the State and the third respondent. 3. Mr. A.L. Somayaji, learned Senior Counsel appearing for the first respondent who is the writ petitioner submitted that the amendment is ultravires the Constitution. He referred to Entry 17 of the Union List viz., "citizenship, nationalisation and aliens" and submitted that the amendment squarely affects the rights of an alien namely the first respondent. Therefore, the State cannot legislate on a subject which is covered by Entry 17 List I. He submitted that the scope of Entry 17 should be given full play and cannot be restricted in its operation. The learned Senior counsel submitted that the amendment cannot be justified on the ground that the amendment falls within Entry 28 List III deals with "charities, charitable institutions, religious endowments and religious institutions". The learned Senior Counsel submitted that it is not necessary to invoke the Doctrine of pith and substance since the matter wholly falls within Entry 17. It is also submitted that an alien is entitled to equal protection under law and the Amending Act 30/94 is arbitrary and negates equality. He also submitted that the right to hold office is 'property'. As per the Scheme decree, the hereditary trusteeship devolved on the respondent and therefore the impugned provision is violative of Article 300A. It was submitted that the amendment which prohibits foreigner or alien from being or being appointed as a trustee is an unreasonable classification and there is no nexus with the object that is sought to be achieved by the amendment. The learned Senior Counsel also submitted that in no other State in India is there such a provision and therefore, this would result in unfair treatment between an alien in the State of Tamil Nadu and an alien for instance, in the State of Karnataka or Andhra Pradesh. The learned Senior Counsel referred to Article 256 and 254 of the Constitution of India. The learned counsel submitted https://hcservices.ecourts.gov.in/hcservices/ that the fact that the assent of the President has been obtained cannot cure the unconstitutionality. He relied on the following judgments: (i) AIR 1954 SC 282 (The Commissioner, HR & CE Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt) (ii) AIR 1970 SC 228 (Indu Bhushan Bose Vs. Rama Sundari Debi and Anr.) (iii) AIR 1963 SC 703 (Gujarat University Vs. Shri Krishna Ranganath Mudhokar) (iv) AIR 1972 SC 1061 (Union of India Vs. Harbhajan Singh Dhillon) (v) AIR 1976 SC 1031 (The Kerala State Electricity Board Vs. Indian Aluminium Co. Ltd.,) (vi) AIR 2002 SC 3404 (Kaiser-I-Hindi Pvt. Ltd. Vs. National Textile Corporation Ltd.) (vii) AIR 1983 SC 1019 (Hoechst Pharmaceuticals Ltd. and Ors Vs. State of Bihar and Ors.) (viii) 2004 (10) SC 201 (State of W.B. Vs. Kesoram Industries Ltd.) (ix) AIR 1973 SC 231 (The Bar Council of Uttar Pradesh Vs. The State of U.P.) 4. Mr. S. Ramasamy, learned Additional Advocate General submitted that the amendment does not in any trespass into the field occupied by Entry 17 and the amendment cannot be termed as usurpation of Union's power. Foreigners Act dealt with Centre's power with regard to foreigners. The State was competent to make laws in respect of all matters connected with "religious institution" and if in that context, the State felt Citizenship should be a qualification for trustee, the same cannot be termed unconstitutional or encroachment into the field occupied by Entry 17. He submitted that in fact, Karnataka has a similar provision. But even if no other State had a similar Act, Article 14 of the Constitution will not come into play. He relied on, (i) 1989 (3) SCC 634 (Federation of Hotel & Restaurant Association of India Vs. Union of India) (ii) 2004 (2) SCC 553 (Bharat Hydro Power Corpn. Ltd Vs. State of Assam) https://hcservices.ecourts.gov.in/hcservices/ 5. Mr. R. Krishnamoorthy, learned Senior Counsel appearing for the respondent would submit that there are provisions in many acts which list citizenship amongst the qualifications to hold the post or negatively provide that not being a citizen would be a disqualification. He relied on the following judgments: (i) AIR 1979 SC 898 (M. Karunanidhi Vs. Union of India) (ii) 2005 (3) SCC 212 (Govt. of A.P. Vs. J.B. Educational Society) (iii) 1998 (7) SCC 26 (Siel Ltd. Vs. Union of India) (iv) 2007 (2) CTC 207 (S. Bagavathy Vs. State of Tamil Nadu) (v) 2003 (9) SCC 358 (Welfare Association, A.R.P., Maharashtra Vs. Ranjit P. Gohil and others) (vi) AIR 1997 Madras 366 (DB) (Daivid John Hopkins Vs. The Union of India) (vii) AIR 1954 SC 493( The State of Madhya Pradesh Vs. G.C. Mandawar) 6. Mr. K. Chandrasekaran, learned counsel appearing for the appellant in W.A.No.2146 of 2005 also made his submissions and he would submit that there is no violation of equality if other States do not have similar provision. He relied on the following judgments: (i) AIR 2005 SC 2920 (Sarbananda Sonowal Vs. Union of India) (ii) AIR 1994 SC 1461(State of Arunachal Pradesh Vs. Khudiram Chakma) 7. We will deal with each of the objections one by one. I. Is Article 14 of the Constitution violated since such a condition is not found in any other State? The chronological narration of events show that the respondent's claim to be a hereditary trustee was rejected and it has become final. His appointment as a fit person was set aside. He was sent to Civil Court. There he obtained a decree by consent from his rival. His claim to be appointed as Managing Trustee was rejected. At this stage, the amendment came. So he was not holding any post when amendment was introduced. The objection is that when a foreigner can be a trustee in a Hindu Religious and Charitable Institutions in a State other than the State of Tamil Nadu, he is denied that right only in the State of Tamil Nadu. But the learned Additional Advocate General produced a copy of the Karnataka Hindu Religious Institutions and Charitable Endowments Act, 1997, where an identical provision is found. Section 21 of the Act which deals with disqualification of Members reads as follows: https://hcservices.ecourts.gov.in/hcservices/ "A person shall not be qualified for being appointed or continued in office as a non-official member on the Advisory Committee, if,-- (a) he is not a citizen of India; ..." Therefore, we may straightaway dismiss this ground of discrimination. Even otherwise, this objection cannot be upheld. The ground of violation of Article 14 is not available for striking down the law of one State on the ground that it is, in contrast with the law of another State discriminatory. (a) In AIR 1954 SC 493(cited supra), the Supreme Court held, "that it is conceivable that when the same Legislature enacts two different laws, but in substance, they are for one legislation, it might be open to the Court to disregard the form and treat them as one law. But, such a course is not open where the two laws sought to be read in conjunction are by different Governments and by different legislatures. Article 14 does not authorise the striking down of a law of one State on the ground that in contrast with a law of another State on the same subject its provisions are discriminatory. Nor does it contemplate a law of the Centre or of the State dealing with similar subjects being held to be unconstitutional by a process of comparative study of the provisions of the two enactments. The sources of authority for the two statutes being different, Article 14 can have no application." Therefore, even if other States do not have a similar provision, on that ground, this Act cannot be quashed. (b) Again, in 1987 (2) SCC 238(Prabhakaran Nair Vs. State of Tamil Nadu), the vires of Section 14(1)(b), 16(2) and incidentally 30 (ii) of Tamil Nadu Buildings (Lease and Rent Control) Act were attacked inter alia on the ground that there was a difference with regard to several statutes namely, Maharashtra, Karnataka, Kerala and West Bengal where there are provisions for re-induction of the tenants in the premises after reconstruction and that the Tamil Nadu Buildings (Lease and Rent Control) Act did not have it. It was specifically contended as in this case that the discrimination against the tenants in Tamil Nadu is invidious and violates Article 14 of the Constitution of India. The Supreme Court held that Article 14 of the Constitution does not authorise the striking down of the law on the ground that it is different from the law of another State on the same subject and the provisions are therefore discriminatory. To arrive at this ratio, the Supreme Court relied on AIR 1954 SC 493 (cited supra). Therefore, this ground is rejected. II. The next ground that was raised was that the legislation has been enacted to single out the respondent, who alone is a foreigner holding the position of trustee in the state of Tamil Nadu. The State is empowered to enact legislations for 'administration of religious institutions" as per Entry 28 List III. It is thus that https://hcservices.ecourts.gov.in/hcservices/ the H.R. & C.E. Act was enacted. Section 26 provides for qualification of a trustee. Several conditions have been prescribed. By the impugned amendment, citizenship has been prescribed as a qualification. The Statement of Objects and Reasons indicate the State's decision to disqualify foreign nationals from holding the posts of trustees. In the counter it is stated that it is for the better administration. (a) In 1988 (2) SCC 433 (L.N. Mishra Institute of Economic Development and Social Change, Patna Vs. State of Bihar), the petitioner challenged two ordinances, which provided for take over by the State Government of Private Educational Institutions of the State of Bihar and in the Schedule to the Act, only one Institute was mentioned, namely L.N. Mishra Institute of Economic Development and Social Change, Patna and it was contended by the petitioner, who attacked the Act that it did not disclose any basis or principle for singling out the Institute or by treating it as a class by itself. The Supreme Court referred to AIR 1958 SC 538 (Ram Krishna Dalmia V. Justice S.R. Tendolkar), and in paragraph 11, held in this case that, "...Certain principles of law have been laid down in that decision. These principles still hold the field and are helpful in considering the constitutionality of a statute. One of these principles is that a law may be constitutional even though it relates to a single individual if, on account of some special circumstances or reasons applicable to him and not applicable to others, that single individual may be treated as a class by himself." (b) In 1983 (1) SC 51 (S.P. Mittal V. Union of India), a Constitution Bench held, again referring to AIR 1958 SC 538 (cited supra) that a law may be constitutional even though it relates to a single individual if, on account of some special circumstances or reasons applicable to him and not applicable to others, that single individual may be treated as a class by himself. Paragraph 167 of this judgment, there is reference to AIR 1959 Orissa 5(Ram Chandra Deb Vs. State of Orissa) in which Sri Jagannath Temple Act, 1955 was challenged as being violative of Article 14 of the Constitution in as much as the Legislature had made a separate Act applicable for that particular temple alone. The Supreme Court quoted from the case that came up in appeal (reported in AIR 1964 SC 1501(Raja Birakishore Vs. State of Orissa))therefrom and the same runs as follows: "There is no violation of Article 14 of the Constitution. The Jagannath Temple occupies a unique position in the State of Orissa and is a temple of national importance and no other temple in that State can compare with it. It stands in a class by itself and considering the fact that it attracts pilgrims from all over India in large numbers, it could be the subject of special consideration by the State Government. A law may be constitutional even though it related to a single individual if on account of special circumstances or reasons applicable to him and not applicable to others, that single individual may be treated as a class by himself." https://hcservices.ecourts.gov.in/hcservices/ Therefore, the fact that the amendment affects only the Vedaranyeswarar Temple or only the respondent cannot be a ground to invalidate the amendment. III. Next we come to the question relating to Article 254(2) of the Constitution and valid Presidential assent. To invoke Article 254(2) of the Constitution there should be a State enactment which is repugnant to an earlier enactment by the Parliament on the same matter enumerated in the Concurrent List and then, the State enactment should have been reserved for consideration by the President and his assent should have been obtained. The learned Senior counsel for the respondent – writ petitioner submitted that the words "reserved for consideration" and the word "assent" should indicate that there should be active application of mind and relied on AIR 2002 SC 3404 (Kaiser-I-Hind Pvt. Ltd. Vs. National Textile Corporation Ltd.) wherein it was held that "reserved for consideration" is not an idle formality and to find out whether the assent given by the President is restricted or unrestricted, the letter written or the proposal made by the State Government for obtaining assent may be looked into. (a) In AIR 1973 SC 231(The Bar Council of Uttar Pradesh Vs. The State of U.P.) the Supreme Court held, "15. A contention sought to be raised on behalf of the appellants based on the question of repugnancy can hardly be of any avail. Once it is held that the power to tax was within the competence of the State Legislature no question of repugnancy under Article 254 of the Constitution could arise. The question of repugnancy can only arise in matters where both the Parliament and the State Legislature have legislative competence to pass laws. In other words when the legislative power is located in the Concurrent List the question of repugnancy arises." (ii) In 2005 (3) SCC 212 (Govt. of A.P. Vs. J.B. Educational Society), the Supreme Court held, "9. The Parliament has exclusive power to legislate with respect to any of the matters enumerated in List I, notwithstanding anything contained in Clauses (2) and (3) of Article 246. The non-obstante clause under Article 246(1) indicates the predominance or supremacy of the law made by the Union legislature in the event of an overlap of the law made by Parliament with respect to a matter enumerated in List I and a law made by the State legislature with respect to a matter enumerated in List II of the Seventh Schedule. 10. There is no doubt that both Parliament and the State legislature are supreme in their respective assigned fields. It is the duty of the Court to interpret the legislations made by the Parliament and the State legislature in such a manner as to avoid any conflict. However, if the conflict isunavoidable, and the two enactments are irreconcilable, then by the force of the non-obstinate clause in Clause (1) of Article 246, the Parliamentary legislation would prevail notwithstanding the exclusive power of the State legislature https://hcservices.ecourts.gov.in/hcservices/ to make a law with respect to a matter enumerated in the State List. 11. With respect to matters enumerated in the List III (Concurrent List), both the Parliament and the State legislature have equal competence to legislate. Here again, the courts are charged with the duty of interpreting the enactments of Parliament and the State legislature in such manner as to avoid a conflict. If the conflict becomes unavoidable, then Article 245 indicates the manner of resolution of such a conflict. 12. Thus, the question of repugnancy between the Parliamentary legislation and the State legislation can arise in two ways. First, where the legislations, though enacted with respect to matters in their allotted sphere, overlap and conflict. Second, where the two legislations are with respect to matters in Concurrent List and there is a conflict. In both the situations, Parliamentary legislation will predominate, in the first, by virtue of the non- obstante clause in Article 246(1), in the second, by reason of Article 245(1). Clause (2) of Article 245 deals with a situation where the State legislation having been reserved and having obtained President's ascent prevails in that State; this again is subject to the proviso that the Parliament can again bring a legislation to override even such State legislation." (iii) In 2004 (2) SCC 553 (Bharat Hydro Power Corpn. Ltd Vs. State of Assam), the Supreme Court held, "The Supreme Court while deciding the constitutionality of the Bharat Hydro Power Corporation Limited (Acquisition and Transfer of Undertaking)Act, 1996 observed that where the question for determination is whether a particular law relates to a particular subject mentioned in one list or the other, the Courts look into the substance of the enactment and held that there ought to be a presumption in favour of the validity of the provision and repugnancy may not be made based on a mere possibility. " (iv) Various Supreme Court decisions were relied on in this regard but it is not necessary to refer to all of them, because basically what they say is, "(A) Constitution of India, Art.254- Repugnancy between law made by State and Parliament – When may arise. Repugnancy between a law made by a State and by the Parliament may result from the following circumstances: 1. Where the provisions of a Central Act and a State Act in the Concurrent List are fully inconsistent and are absolutely irreconcilable, the Central Act will prevail and the State Act will become void in view of the repugnancy. 2. Where however a law passed by the State comes into collision with a law passed by Parliament on an Entry in the https://hcservices.ecourts.gov.in/hcservices/ Concurrent List, the State Act shall prevail to the extent of the repugnancy and the provisions of the Central Act would become void provided the State Act has been passed in accordance with Clause (2) of Article 254. 3. Where a law passed by the State Legislature while being substantially within the scope of the entries in the State List entrenches upon any of the Entries in the Central List the constitutionality of the law may be upheld by invoking the doctrine of pith and substance if on an analysis of the provisions of the Act it appears that by and large the law falls within the four corners of the State List an entrenchment, if any, is purely incidental or inconsequential. 4. Where, however, a law made by the State Legislature on a subject covered by the Concurrent List is inconsistent with and repugnant to a previous law made by Parliament, then such a law can be protected by obtaining the assent of the President under Article 254(2) of the Constitution. The result of obtaining the