Case: Dr. Subramanian Swamy Vs. State Of Tamil Nadu

concerned, it is under challenge in Writ Petition (C) No. 544 of 2009 and the said petition had earlier been tagged with these appeals, but it has been de-linked and is to be beard after the judgment in these appeals is delivered. Thus, in view of the stand taken by the State before this court, going into the issue of validity of Section 45 of the Act 1959 does not arise and in that respect it has been submitted in written submissions as under: (a) The scheme of administration in Board’s Order No.997 dated 8.5.1933 under the Act 1927 contained various provisions inter-alia that active management would rest in the committee consisting of nine members who were to be elected from among the Podhu Dikshitars (clause 4);(b) At the time of issuing the order of appointment of Executive Officer, the Podhu Dikshitars were given full opportunity of hearing and the powers and duties of the Executive Officer as defined by the Commissioner would show that the religious affairs have not been touched at all and the trustees and the Executive Officers are jointly managing the temple. The Podhu Dikshitars have not been divested of the properties and it was not the intention of the State Government to remove the trustees altogether, rather the Executive Officers function alongwith the trustees;(c) In any event, the Podhu Dikshitars are trustees in the temple and they have not been divested of their properties. The Executive Officer is only collaborating with the trustees in administering the properties. Their religious activities have not been touched. Neither the powers of the trustees have been suspended nor the Executive Officers have been vested with their powers and the Executive Officers only assist the trustees in management of the temple. It was not the intention to remove the trustees altogether, nor the order of appointment of the Executive Officer suspends the scheme already framed way back in 1939. 46. Be that as it may, the case is required to be considered in light of the submissions made on behalf of the State of Tamil Nadu and particularly in view of the written submissions filed on behalf of the State.47. Even if the management of a temple is taken over to remedy the evil, the management must be handed over to the person concerned immediately after the evil stands remedied. Continuation thereafter would tantamount to usurpation of their proprietary rights or violation of the fundamental rights guaranteed by the Constitution in favour of the persons deprived. Therefore, taking over of the management in such circumstances must be for a limited period. Thus, such expropriatory order requires to be considered strictly as it infringes fundamental rights of the citizens and would amount to divesting them of their legitimate rights to manage and administer the temple for an indefinite period. We are of the view that the impugned order is liable to be set aside for failure to prescribe the duration for which it will be in force. Super-session of rights of administration cannot be of a permanent enduring nature. Its life has to be reasonably fixed so as to be co-terminus with the removal of the consequences of maladministration. The reason is that the objective to take over the management and administration is not the removal and replacement of the existing administration but to rectify and stump out the consequences of maladministration. Power to regulate does not mean power to supersede the administration for indefinite period. Regulate is defined as to direct; to direct by rule or restriction; to direct or manage according to the certain standards, to restrain or restrict. The word `regulate’ is difficult to define as having any precise meaning. It is a word of broad import, having a broad meaning and may be very comprehensive in scope. Thus, it may mean to control or to subject to governing principles. Regulate has different set of meaning and must take its colour from the context in which it is used having regard to the purpose and object of the legislation. The word `regulate’ is elastic enough to include issuance of directions etc. (Vide: K. Ramanathan v. State of Tamil Nadu & Anr., AIR 1985 SC 660 ; and BalmerLawrie & Company Limited & Ors. Partha Sarathi Sen Roy & Ors., (2013) 8 SCC 345 ) 48. Even otherwise it is not permissible for the State/Statutory Authorities to supersede the administration by adopting any oblique/circuitous method. In Sant Lal Gupta & Ors. v. Modern Coop. Group Housing Society Ltd. & Ors., (2010) 13 SCC 336 , this Court held: “It is a settled proposition of law that what cannot be done directly, is not permissible to be done obliquely, meaning thereby, whatever is prohibited by law to be done, cannot legally be effected by an indirect and circuitous contrivance on the principle of “quando aliquid prohibetur, prohibetur et omne per quod devenitur ad illud”. An authority cannot be permitted to evade a law by “shift or contrivance”.”(See also: JagirSingh v. Ranbir Singh, AIR 1979 SC 381 ; A.P. Diary Dev. Corporation federation v. B. Narsimha Reddy & Ors. AIR 2011 SC 3298 ; and State of Tamil Nadu & Ors. v. K. Shyam Sunder & Ors. AIR 2011 SC 3470 ). 49. We would also like to bring on the record that various instances whereby acts of mismanagement/maladministration/ misappropriation alleged to have been committed by Podhu Dikshitars have been brought to our notice. We have not gone into those issues since we have come to the conclusion that the power under the Act 1959 for appointment of an Executive Officer could not have been exercised in the absence of any prescription of circumstances/ conditions in which such an appointment may be made. More so, the order of appointment of the Executive Officer does not disclose as for what reasons and under what circumstances his appointment was necessitated. Even otherwise, the order in which no period of its operation is prescribed, is not sustainable being ex facie arbitrary, illegal and unjust.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]38. Thus, in view of the above, it was not permissible for the High Court to assume that it had jurisdiction to sit in appeal against its earlier judgment of 1951 which had attained finality. Even otherwise, the High Court has committed an error in holding that the said judgment in MarimuthuDikshitar (Supra) would not operate as res judicata. Even if the Temple was neither established, nor owned by the said respondent, nor such a claim has ever been made by the Dikshitars, once the High Court in earlier judgment has recognised that they constituted `religiousor section thereof and had right to administer the Temple since they had been administering it for several centuries, the question of re-examination of any issue in this regard could not arise.We would also like to bring on the record that various instances whereby acts of mismanagement/maladministration/ misappropriation alleged to have been committed by Podhu Dikshitars have been brought to our notice. We have not gone into those issues since we have come to the conclusion that the power under the Act 1959 for appointment of an Executive Officer could not have been exercised in the absence of any prescription of circumstances/ conditions in which such an appointment may be made. More so, the order of appointment of the Executive Officer does not disclose as for what reasons and under what circumstances his appointment was necessitated. Even otherwise, the order in which no period of its operation is prescribed, is not sustainable being ex facie arbitrary, illegal and unjust.Undoubtedly, the object and purpose of enacting Article 26 of the Constitution is to protect the rights conferred therein on a `religious denomination` or a section thereof. However, the rights conferred under Article 26 are subject to public order, morality and health and not subject to any other provision of Part III of the Constitution as the limitation has been prescribed by the law makers by virtue of Article 25 of themeans collection of individuals having a system of belief, a common organisation; and designation of a distinct name. The right to administration of property by a ‘religiouswould stand on a different footing altogether from the right to maintain its own affairs in matters of religion. (Vide: AcharyaMaharajshri Narendra Prasadji Anandprasadji Maharaj etc.etc. v. The State of Gujarat & Ors., AIR 1974 SC 2098 ; T.M.A. Pai Foundation & Ors. v. State of Karnataka & Ors., AIR 2003 SC 355 ; and NallorMarthandam Vellalar & Ors. v. Commissioner, Hindu Religious and Charitable Endowments & Ors., AIR 2003 SCCourt upheld the validity of Section 58 of the Act 1951 which had been struck down by the Division Bench which is analogous to Section 64 of the Act 1959.17. In view of the provisions of Sections 44 and 45(2) of the Act 1959, the State Government can regulate the secular activities without interfering with the religious activities.It is not a case to examine whether in the facts and circumstances of the case, the judgments of this court in various cases are required to be followed or the ratio thereof is binding in view of the provisions of Article 141 of the Constitution.Rather the sole question is whether an issue in a case between the same parties, which had been finally determined could be negated relying upon interpretation of law given subsequently in some other cases, and the answer is in the negative.More so, nobody can claim that the fundamental rights can be waived by the person concerned or can be taken away by the State under the garb of regulating certain activities.23. The scope of application of doctrine of res judicata is inliteral meaning ofng that may form an object of rights and includes an object,literally meansmatter adjudged a thing judicially acted upon or decided; a thing or matter settled bys judicata pro veritateis the full maxim which has, over the years, shrunk to mere, which means that res judicata is accepted for truth.The doctrine contains the rule of conclusiveness of the judgment which is based partly on the maxim of Roman jurisprudencereipublicae ut sit finis(it concerns the State that there be an end to law suits) and partly on the maximdebet bis vexari pro uno et eadem(no man should be vexed twice over for the samean erroneous decision on a question of law attracts the doctrine of res judicata between the parties to it. The correctness or otherwise of a judicial decision has no bearing upon the question whether or not it operates as res judicata. (Vide: Shah Shivraj Gopalji v.Appakadh Ayiassa Bi & Ors., AIR 1949 PC 302 ; andv. Benoy Kishna Mukherjee & Ors., AIR 1953 SC 65 ).Even otherwise, a different view on the interpretation of the law may be possible but the same should not be accepted in case it has the effect of unsettling transactions which had been entered into on the basis of those decisions, as reopening past and closed transactions or settled titles all over would stand jeopardized and this would create a chaotic situation which may bring instability in thears are religious denomination or sectionis in fact a declaration of their status and making such declaration is in fact a judgment in rem.The issue can be examined from another angle. Explanation to Order XLVII, Rule 1 ofCode of Civil1908 (hereinafter referred to as the ‘provides that if the decision on a question of law on which the judgment of the court is based, is reversed or modified by the subsequent decision of a superior court in any other case, it shall not be a ground for the review of such judgment. Thus, even an erroneous decision cannot be a ground for the court to undertake review, as the first and foremost requirement of entertaining a review petition is that the order, review of which is sought, suffers from any error apparent on the face of the order and in absence of any such error, finality attached to the judgment/order cannot be disturbed. (Vide: RajendraKumar & Ors. v. Rambhai & Ors., AIR 2003 SC 2095 ).36. In view of the fact that the rights of the respondent no. 6 to administer the Temple had already been finally determined by the High Court in 1951 and attained finality as State of Madras (as it then was) had withdrawn the notification in the appeal before this Court, we are of the considered opinion that the State authorities under the Act 1959 could not pass any order denying those rights. Admittedly, the Act 1959 had been enacted after pronouncement of the said judgment but there is nothing in the Act taking away the rights of the respondent no. 6, declared by the court, in the Temple or in the administration thereof.37. The fundamental rights as protected under Article 26 of the Constitution are already indicated for observance in Section 107 of the Act 1959 itself. Such rights cannot be treated to have been waived nor its protection denied. Consequently, the power to supersede the functions of a `religious denomination` is to be read as regulatory for a certain purpose and for a limited duration, and not an authority to virtually abrogate the rights of administration conferred onon, it was not permissible for the authorities to pass any order divesting the said respondent from administration of the Temple and thus, all orders passed in this regard are liable to be held inconsequential and unenforceable. More so, the judgments relied upon by the respondents are distinguishable on facts.Thus, in view of the above, it was not permissible for the High Court to assume that it had jurisdiction to sit in appeal against its earlier judgment of 1951 which had attained finality. Even otherwise, the High Court has committed an error in holding that the said judgment in MarimuthuDikshitar (Supra) would not operate as res judicata. Even if the Temple was neither established, nor owned by the said respondent, nor such a claim has ever been made by the Dikshitars, once the High Court in earlier judgment has recognised that they constituted `religiousor section thereof and had right to administer the Temple since they had been administering it for several centuries, the question ofof any issue in this regard could not arise.Relevant features of the order passed by the Commissioner are that the Executive Officer shall be incharge of all immovable properties of the institution; the Executive Officer shall be entitled to the custody of all immovables, livestock and grains; the Executive Officer shall be entitled to receive all the income in cash and kind and all offerings; all such income and offerings shall be in his custody; all the office holders and servants shall work under the immediate control and superintendence of the Executive Officer, though subject to the disciplinary control of the Secretary of theno.6., etc.40. Section 116 of the Act 1959 enables the State Government to frame rules to carry out the purpose of the Act formatters expressly required or allowed by this Act to beClause 3 thereof requires approval of the rules by the House of State Legislature. The Executive Officer so appointed by the Commissioner has to function as per assigned duties and to the extent the Commissioner directs him to perform.Be that as it may, the case is required to be considered in light of the submissions made on behalf of the State of Tamil Nadu and particularly in view of the written submissions filed on behalf of the State.47. Even if the management of a temple is taken over to remedy the evil, the management must be handed over to the person concerned immediately after the evil stands remedied. Continuation thereafter would tantamount to usurpation of their proprietary rights or violation of the fundamental rights guaranteed by the Constitution in favour of the persons deprived. Therefore, taking over of the management in such circumstances must be for a limited period. Thus, such expropriatory order requires to be considered strictly as it infringes fundamental rights of the citizens and would amount to divesting them of their legitimate rights to manage and administer the temple for an indefinite period. We are of the view that the impugned order is liable to be set aside for failure to prescribe the duration for which it will be in force.