IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24 -10-2009 CORAM: THE HONOURABLE MR. JUSTICE V. RAMASUBRAMANIAN W.P.Nos.23049 and 23050 of 2003 1.T.E.Vijayaraghavan 2.P.B.Ranganathan ... Petitioners in both WPs vs. 1.The Joint Commissioner, HR&CE Administration Department, Vellore. 2.K.S.Lakshmikumara Thathachariar Sri Thatha Desikar 3.T.A.Ranganathan 4.E.Veeraraghavan 5.E.Srinivasaraghavan 6.T.C.Srinivasan 7.The Assistant Commissioner/ Executive Trustee, Arulmighu Devaraja Swamy Temple, Kancheepuram. 8.K.Nagappan ... Respondents in both WPs (R-8 impleaded as per order of Court in WPMPs 36465 and 36466/2003 dated 10.4.2006) WP No.23049/2003: This writ petition is filed under Article 226 of the Constitution of India, praying for the issue of a Writ of Certiorari, calling for the records in O.A.No.21 of 1999 on the file of the first respondent quashing the proceedings in O.A.No.21 of 1999 dated 11.6.2003 passed pursuant to order dated 9.3.2000 passed on the file of the first respondent. W.P.No.23050/2003: This writ petition is filed under Article 226 of the Constitution of India, praying for the issue of a Writ of Mandamus, https://hcservices.ecourts.gov.in/hcservices/ directing the first respondent pass final orders in O.A.No.95 of 1978. For Petitioner in both WPs : Mr.K.Alagirisamy, Senior Counsel for Mr.K.V.Ananthakrishnan For R-1 in both WPs : Mr.S.Ramasamy, Additional Advocate General assisted by Mr.T.Chandrasekaran, Special Government Pleader (HR&CE). For R-2 in both WPs : Mr.S.Balasubramaniam For R-4 in both WPs : Mr.R.Singaravelan For R-6 in both WPs : Mr.S.Parthasarathy, Senior Counsel for Mr.J.Ramakrishnan For R-7 in both WPs : Mr.K.Vamanan For R-8 in both WPs : Mr.T.C.A.Srinivasan for Mr.K.S.Gnanasambandam. C O M M O N O R D E R Belying the hopes expressed by eminent judges and ignoring the scathing criticism and ridicule, made on and off the Court, for over two centuries, the two schools (Thengalais and Vadagalais) of Srivaishnavism have continued to engage Lord Devarajaswami of Kancheepuram in a never ending litigation. Every judgment is rendered by a court in the fond hope that it would resolve the disputes between the parties once and for all. But the disputes relating to the temple of Devarajaswami always belied such hopes as seen from the observations of the Sub-Court, Chinglepet in O.S.No.30 of 1956 wherein the learned Judge observed:"The history of litigation shows that when one controversy is solved by judicial decision, another controversy arises, as a sphinx from its ashes, to help the flame of eternal disputations" The writ petitions herein are part of that legacy. 2. The petitioners have come up with the present writ petitions (i) challenging the initiation of suo motu proceedings by the Joint Commissioner of the Hindu Religious and Charitable Endowments Department in O.A.No. 21 of 1999 for the modification of a scheme for the management of the Arulmigu Devaraja Swamy Temple at Kancheepuram and (ii) seeking a direction to him to pass final orders in an earlier proceeding of similar nature in O.A.No.95 of 1978. 3. I have heard Mr.K.Alagirisamy, Senior Counsel appearing for the petitioners in both the writ petitions, Mr.S.Ramasamy, Additional Advocate General appearing for the Department, Mr.S.Balasubramaniam, learned counsel appearing for the second respondent in both the writ petitions, Mr.R.Singaravelan, learned https://hcservices.ecourts.gov.in/hcservices/ counsel appearing for the fourth respondent in both the writ petitions, Mr.S.Parthasarathy, learned Senior Counsel appearing for the sixth respondent in both the writ petitions, Mr.K.Vamanan, learned counsel appearing for the seventh respondent in both the writ petitions and Mr.T.C.A.Srinivasan, learned counsel appearing for the eighth respondent in both the writ petitions. 4. Sri Devaraja Swamy temple at Kancheepuram is one of the most ancient temples of South India, though the early history of the temple is involved, as stated by a Division Bench of this Court, in much obscurity. It is considered to be one of the 108 "Divya Desas" by some of the followers of Sri Vaishnavism. Though Sri Vaishnavism, as propagated, postulated and popularised by one of the greatest Saints of all times by name Sri Ramanujacharya, is firmly rooted in "eternal love", the two schools of Vaishnavism viz., "Thengalais" and "Vadagalais" plunged some of the ancient and holy shrines into "eternal litigation". Sri Devaraja Swamy temple of Kancheepuram is one such temple, described by a Division Bench of this Court way back in 1912 as a source of constant and bitter litigation. 5. The history of litigation in this temple, which may provide an interesting case study for a student of law, may be stated in a nutshell as follows:- (i) It appears that towards the close of the 17th Century, the idol of Lord Varadaraja Swamy was removed from Kancheepuram and taken to Udayarpalayam, with a view to protect it from a possible threat of invasion. However, one Athan Thiruvenkata Ramanuja Jeer, who belonged to the Thengalai sect, brought the idol back to Kancheepuram in 1710 A.D., with the aid provided by the Nawab of Hyderabad. Interestingly, Lord Varadaraja Swamy remained peaceful at Udayarpalayam, perhaps due to the fact that the word "Udayar" from which the word "Udayavar" is derived also denotes Sri Ramanuja. From the time the idol was brought back to Kancheepuram, the warring groups of devotees have dragged the Lord into ever so many disputes. It appears that after the idol was brought to Kancheepuram, the localites known as Sthalasthars and one Lala Thodar Maulji, a Chieftain of the Mohemmedan Prince by name Sadulla Khan, conferred the right of management on the said Athan Jeer. This enabled the Thengalais to gain the right of management of the temple, till the end of the 18th century. (ii) However, the last of the trustees of the Thengalai sect (of the 18th century) by name Rama Row was dismissed by the Government, when the Government's attention was invited to the serious differences between the two sects. Interestingly, Rama Row was considered to be a descendant of Ramanuja Jeer, who belonged to the Thengalai sect and whose ancestor Attan Jeer brought back the idol to Kancheepuram. However, the Vadagalais claimed that Rama Row was a clerk appointed by them. There was also a theory that Ramanuja Jeer (predecessor of Rama Row) got the trusteeship from the family of Todur Mall, which got it from Sthalathars (localites). https://hcservices.ecourts.gov.in/hcservices/ (iii) After the dismissal of Rama Row, one Srinivasa Raghavachari was appointed by the Board of Revenue, but he was also dismissed in 1796. From 1796, the temple continued under the management of the Government till 1842. (iv) In 1842, the Government decided to disconnect itself from the management of religious institutions in the country, in pursuance of the orders of the Court of Directors. At that time, 3 sets of persons viz., (i) the descendants of Attan jeer (ii) the Sthalathars and (iii) the Thathachars, staked claim to the management and administration of the temple. The Collector proposed a Board of Trustees comprising of (i) the head of the Thathachar family (ii) an Archaka (iii) a Paricharaka (iv) a descendant of Rama Row and (v) a member of Arulappad. (v) However, the Board of Revenue opined that the appointment of a plurality of trustees was undesirable and hence recommended the appointment of one Kumara Thathachariar, the head of the Thathachar family to be the sole hereditary trustee. The Government of Madras confirmed the proceedings of the Board of Revenue and issued an order appointing him as, what is described as "Churchwardenship". (vi) Though the proceedings of the Board of Revenue and the order of the Government did not bear an intention to appoint Kumara Thathachariar, on behalf of his family, he nevertheless entered into an agreement on 9.2.1843 with the members of his family, with the professed object of preventing future disputes and for saving the mirasi office from ruin. (vii) Though the above agreement maintained peace for some time, among the members of the family of Thathachars, a suit in O.S.No.5 of 1844 came to be instituted in the Zillah Court of Chinglepet, by Appa Row, whose claim for trusteeship had been earlier rejected by the Government. The suit was dismissed and the dismissal was confirmed by the Court of Sadr Adalat in Appeal No.29 of 1849. (viii) After the dismissal of the claims by Appa Row, a set of rules were framed by the members of the family of Thathachars, recognising the common rights of all the members of the family and placing all the Dharma-kartas on an equal footing. Subsequently, a tenure of office was also fixed and fresh agreements came to be executed. (ix) However, the respect that all those agreements claimed, was only short lived. As the Vampire(vethalam) in the story of Vikramaditya, would often return to its tree, the members of the group of families of the Thathachars again went back to a litigative mood and a suit in O.S.No.11 of 1907 came to be instituted in the District Court of Chinglepet, under Section 539 of the Code of Civil Procedure, 1882, for framing a scheme for the administration of the temple. Allegations of non-feasance, misfeasance and malfeasance were made against the trustees. The District Judge settled a scheme https://hcservices.ecourts.gov.in/hcservices/ providing just for periodical stock taking, for the receipt and custody of the offerings and the income of the temple and for the audit of accounts and certain other matters. However, the District Judge refused to frame any rules for the election of trustees, appointment of mediators and for filling up vacancies in the office of the trustee. (x) Not satisfied with the scheme framed by the District Judge, an appeal was filed in A.S.No.212 of 1909 on the file of this Court and the defendants also filed objections to the judgment of the District Court. During the pendency of the appeal, disputes became serious, leading to the appointment of a Receiver. Several persons representing the Thengalai sect and the Sthalathars of the temple, sought to implead themselves in the appeal on the ground that they had instituted independent suits for the settlement of a scheme and that all those disputes could be resolved at one stop shop by impleading them in the appeal.. A Division Bench of this Court comprising of Abdul Rahim and Sundaram Ayyar, JJ., allowed the impleadment of those two groups of persons and considered two principal issues, which are as follows:- (a) Whether the family of defendants 1 to 5 was entitled to the exclusive right of trusteeship ? (b) Whether additional trustees should be appointed to put an end to the constant and recurring quarrels and litigation connected with the temple and to put the administration of its affairs on a satisfactory footing ? (xi)In its decision rendered on 26.4.1912 {K.A.Veeraraghava Thathachariar vs. T.Srinivasa Thathachariar – (1912) 23 MLJ 134}, the Division Bench held on the first issue that the alleged exclusive right of the family of defendants 1 to 5, if it ever existed, was extinguished by the statute of limitation. The Bench pointed out that the title of the family was not an ancient title, but one derived, if at all, only under the order of the Government made in 1842. The Bench also observed that they were averse to the creation of any hereditary right to the office of a public trustee, as such a course would not be in the interests of the institution. On the second issue, it was held that the Court had the power, if it considered it desirable, to appoint additional trustees. However, in the circumstances of the case, the Division Bench held it unnecessary and undesirable to appoint any additional trustees, either from amongst the Thengalai sect or from amongst the Sthalathars. The Bench opined that the appointment of a Thengalai as trustee may not promote harmony in the management of the temple and that one or two Thengalais may not be likely to control the actions of the Vadagalai trustees, though it might lead to constant opposition and mutual recrimination. The Bench also rejected the claim of Sthalathars, on the ground that they were only the servants of the temple. https://hcservices.ecourts.gov.in/hcservices/ (xii) However, the Division Bench also opined, having regard to the past management of the temple, that it was desirable to provide some authorities to supervise the administration by the trustees. The Bench found that the members of the Thengalai sect held offices in the temple and also possessed important interests such as (i) to address the invocation before the recitation of the Prabandham or Tiruvaimozhi to Saint Manavala Maamuni (ii) the right to Adhyapakam office (iii) the right to a good proportion of the Thirtham offices (iv) the right of Asirvartham and (v) the right to the office of Mulji Dharmakarta. Interestingly, each of these rights had also led to separate series of litigation. While the right to Adhyapakam office was decided in Krishnaswami Thathachar vs. Krishnamachar {1882 ILR 5 Mad. 313}, the dispute relating to the type of the mark to be painted on the forehead, known as "Namam", was decided in Krishnaswami Iyengar vs. Samaram Srirangachariar {1906 ILR 30 Mad. 158}. Each of those litigations,is a history by itself, but we are concerned in this case, only with the dispute relating to framing of scheme. (xiii) In short, in its decision dated 26.4.1912, ((1912) 23 MLJ 134) the Division Bench summarised the reasons for appointing a Supervisory Board, on the following lines: "The documents filed in the case clearly show that there is bitter enmity between the members of the Thengalai and Vadagalai communities in the place and each community has manifested a most reprehensible amount of unwillingness to recognise the just claims of the other community and of office holders belonging to it. We have therefore considered it desirable in appointing a Board of Supervision to provide that one of the members of the Board should be a Thengalai gentleman not holding any office in the temple" (xiv) Though the Bench refrained from adjudicating on the allegations of misconduct on the part of the trustees, the Bench noted that "there can be no doubt that the history of the temple is one of incapacity, indifference and disharmony among the trustees". Therefore, while framing a scheme, the Division Bench provided for the appointment of a Board of Supervision for the Devasthanam (different from the Board of Trustees), comprising of 3 members (i) one Vadagalai Vaishnava who is not a member of the Thathachari family (ii) one Thengalai Vaishnava and (iii) one Smartha or Madhwa. (xv) The scheme framed by this Court in the aforesaid decision {(1912) 23 Mad. 134}, provided for the appointment of 5 trustees, 3 of whom shall be the members of the Eastern Branch and 2 shall be from the Western Branch of the family of Koti Kanyakadanam Sri Thathadesikar. The scheme envisaged the tenure of office of the trustees as 5 years and provided for the appointment of one of them by rotation as Executive Trustee for a period of one year, so that https://hcservices.ecourts.gov.in/hcservices/ all the 5 will hold office for one year each,during their tenure. However, the Board of Supervision was entrusted with the powers of supervision over the trustees. (xvi) The scheme settled by the Division Bench in the year 1912, in the aforesaid decision {K.A.Veeraraghava Thathachariar vs. Srinivasa Thathachariar}, also did not last for long, as a fresh suit for modifying the same was filed in O.S.No.1 of 1928 by T.A.Krishnama Chariar and Others on the file of the District Court, Chinglepet. By the time the said suit was filed, the Madras Hindu Religious and Charitable Endowments Act, 1927, had come into force. Therefore, the Board was added as the 36th defendant in the suit. By a judgment and decree dated 21.12.1933, the District Court, Chinglepet held that the existing scheme {as framed by the Division Bench in the aforesaid decision in 23 MLJ 134} was not working satisfactorily. The District Judge decreed a modification, to the extent that the Board of Supervision appointed by the existing scheme would no longer be necessary and that the powers of supervision conferred on that Board stood vested by statute upon the Hindu Religious Endowments Board. But this decision of the District Court, Chinglepet, became the subject matter of challenge in A.S.No.175 of 1934 on the file of this Court. (xvii) After the aforesaid decision of the District Court, Chinglepet, in O.S.No.1 of 1928, the Hindu Religious Endowments Board passed an order, declaring the temple to be an excepted temple on the ground that the right of succession to the office of trustee had been hereditary. That order of the Endowments Board was challenged in O.P.No.8 of 1940, on the file of the District Court, Chinglepet, by T.V.Bashyakar and others. But the District Judge upheld the order of the Board that the temple is an excepted temple. While ordering so, Mr.P.N.Ramaswamy, the District Judge, Chinglepet (who later became a Judge of this Court) made an interesting observation which reads as follows:- "The scheme framed by the High Court with such full patience and labour has unfortunately proved to be an unqualified failure. The scheme had to be worked, not by reasonable people, in a spirit of compromise but by veteran litigants consistently described by all persons who have had to decide those matters as being, "inspired by Sectarian rivalry and animosity", to whom every judgment of the District Court has been only a furlong stone and every Judgment of the High Court has been only a mile stone in the long road of litigation the end of which no one can see". (xviii) However, the order of the District Judge, Chinglepet, in O.P.No.8 of 1940 was set aside by a Division Bench comprising of Wadsworth and Patanjali Sastri, JJ., in T.V.Bashyakar and others vs. The Madras Hindu Religious Endowments Board {1941 (1) MLJ 250}. It https://hcservices.ecourts.gov.in/hcservices/ was held by the Division Bench that this temple is not a temple, the succession to the trusteeship whereof is hereditary. The Division Bench also declared the temple to be a non-excepted temple. (xix) After disposing of the appeal and revision arising out of O.P.No.8 of 1940 in the manner aforesaid, the very same Division Bench comprising of Wadsworth and Patanjali Sastri, JJ., heard the appeal A.S.No.175 of 1934, arising out of the modification of the scheme decreed in O.S.No.1 of 1928 by the District Judge, Chinglepet. By a judgment dated 17.1.1941, the Division Bench held that the then existing scheme required considerably more modification than what was thought sufficient by the District Judge. In their judgment, the Division Bench made a prophetic observation which reads as follows:- "Doubtless such of the troubles were due to the quarrels between Thengalais and Vadagalais and to factious strife between different subdivision of the main sects. But these quarrels are no new thing nor are they likely to disappear in the near future, and scheme which does not have regard to this tendency to faction and which does not endeavour to safeguard the temple administration, from its effects, is not a suitable scheme for this particular institution, whatever its merits in the abstract." Ultimately, the Bench provided for the appointment of only 2 honorary trustees (instead of 5), who were to be elected by and from the lineal male descendants of Sri Thatha Desikar and one Executive Trustee, who should be a Smartha or Madhwa Brahmin to be appointed by the Hindu Religious Endowments Board. (xx) Till a modified scheme was put in place by the Division Bench in the above decision A.S.No.175 of 1934, the disputes were confined either (i) to the different branches of the family of Thathachars or (ii) between the Thathachars and the Thengalais or (iii) between Thathachars, Thengalais and Sthalathars. But after the creation of the Endowments Board by statute, they also jumped into the arena, adding a fourth dimension to the disputes, though the role of the Board (now a Department of the State), is to provide an efficient administration and to maintain peace and harmony. As a matter of fact, the fight between the two factions (Thengalais and Vadagalais) for the past nearly 50 years (from 1961), revolves around the various proceedings initiated by the Department. (xxi) After the advent of the Madras Hindu Religious and Charitable Endowments Act XXII of 1959, the Deputy Commissioner initiated proceedings in O.A.No.99 of 1961, for amending the scheme so as to bring it in accord with the provisions of the Act. Challenging the said proceedings, initiated under Section 64(5) of https://hcservices.ecourts.gov.in/hcservices/ the Act, R.Thatha Desika Thathachariar filed a writ petition in W.P.No.2468 of 1969. But the writ petition was dismissed by Alagiriswami, J., on 18.8.1969. The appeal was also dismissed by a Division Bench comprising of K.Veeraswami, Chief Justice and P.R.Gokula Krishnan, J. {1970 (2) MLJ 475}. The decision was confirmed by the Supreme Court. (xxii) However, as if to make the love's labour lost, the proceedings initiated in O.A.No.99 of 1961 were dropped by the Deputy Commissioner, HR&CE, on 8.10.1973, after perhaps enjoying the fun of litigation. Interestingly, he dropped the proceedings on the ground that he had no jurisdiction to modify the scheme. Therefore, the order of the Deputy Commissioner was challenged before the Commissioner, by way of a statutory appeal in A.P.No.153 of 1974. The Commissioner set aside the order of the Deputy Commissioner dated 8.10.1973 and remitted the matter back to him for fresh consideration. (xxiii) The Deputy Commissioner initiated a fresh enquiry, after renumbering the proceedings as O.A.No.95 of 1978. After hearing the parties and considering their contentions and statements, the Deputy Commissioner issued a notice dated 25.6.1982, proposing to modify the existing scheme, as per the Draft Modified Scheme annexed to the notice. As per the Draft Modified Scheme, proposed by the Deputy Commissioner, the administration of the temple was to vest in a Board of Trustees. The Board was to comprise of 5 trustees, with one from Thathacharis, one from the Thengalai sect, one non-Brahmin Vaishnavaite, one Smartha or Madhwa Brahmin and one Harijan. The Board was also to have an Executive Officer appointed in accordance with the provisions of the Act. (xxiv) Challenging the Draft Modified Scheme and the notice dated 25.6.1982, issued by the Deputy Commissioner, one T.Lakshmikumara Thathachariar filed a writ petition in W.P.No.5121 of 1982. He belonged to the Eastern Branch of Sri Koti Kanyakadanam Thathadesikar family. The writ petition was dismissed. (xxv) Aggrieved by the dismissal of the writ petition, T.Lakshmikumara Thathachariar filed an appeal in W.A.No.122 of 1987. He also filed a writ petition in W.P.No.2082 of 1987 challenging the vires of Section 64 (5) and 118 of the Tamilnadu Hindu Religious and Charitable Endowments Act, 1959. After the dismissal of that writ petition, he filed an appeal in W.A.No.141 of 1987. Both the appeals viz., W.A.No.122 of 1987 and 141 of 1987 were dismissed by the Division Bench. The appeals arising out of the same in C.A.Nos.4570 and 4571 of 1998 also met with the same fate, when the Supreme Court dismissed them on 2.9.1998. (xxvi) Thus the challenge to the Draft Modified Scheme issued by the Deputy Deputy Commissioner in O.A.No.95 of 1978, on 25.6.1982, failed ultimately with the dismissal of the Civil Appeals by the Supreme Court in September 1998. It must be remembered at this https://hcservices.ecourts.gov.in/hcservices/ juncture that O.A.No.95 of 1978 was actually initiated in the year 1961 in O.A.No.99 of 1961 and got renumbered after remand in the first round by the Commissioner. (xxvii) Despite the challenge to the Draft Modified Scheme, having been rejected by a single Judge, by the Division Bench and by the Supreme Court, the Deputy Commissioner abandoned the further proceedings. Instead, the Joint Commissioner initiated fresh proceedings suo motu, in O.A.No.21 of 1999, invited objections and passed an order on 11.6.2003, notifying another Draft Modified Scheme and inviting objections and suggestions thereto. (xxviii) Aggrieved by these proceedings, the petitioners have come up with the present writ petitions. As stated earlier, the challenge in one writ petition is to the fresh proceedings dated 11.6.2003 in O.A.No.21 of 1999. In the other writ petition, the prayer is for passing final orders in the previous proceedings in O.A.No.95 of 1978, whereby a Draft Modified Scheme was notified on 25.6.1982. 6. By the modified scheme now proposed by the Joint Commissioner in his suo