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

The facts and circumstances giving rise to the appeal are asThat Sri Sabhanayagar Temple at Chidambaram (hereinafter referred to as theis in existence since times immemorial and had been administered for a long time by Podhu Dikshitars (all male married members of the families of Smarthi Brahmins who claim to have been called for the establishment of the Temple in the name of Lord Natraja).B. The State of Madras enacted the Madras Hindu Religious and Charitable Endowments Act, 1927 (hereinafter referred to as the ‘Actwhich was repealed by the Act 1951. A Notification No.G.O.Ms.894 dated 28.8.1951 notifying the Temple to be subjected to the provisions of Chapter VI of the Act 1951 was issued. The said notification enabled the Government to promulgate a Scheme for the management of the Temple.C. In pursuance to the same, the Hindu Religious Endowments Board, Madras (hereinafter called theappointed an Executive Officer for the management of the Temple in 1951 vide order dated 28.8.1951 etc.D. The Dikshitars, i.e. respondent no.6 and/or their predecessors in interest challenged the said orders dated 28.8.1951 and 31.8.1951 by filing Writ Petition nos. 379-380 of 1951 before the Madras High Court which were allowed vide judgment and order dated 13.12.1951 quashing the said orders, holding that the Dikshitars constituted a ‘religiousand their position vis-a-vis the Temple was analogous to muttadhipati of a mutt; and the orders impugned therein were violative of the provisions of Article 26 of the Constitution.E. Aggrieved, the State of Madras filed appeals before this Court, which stood dismissed vide order dated 9.2.1954 as the notification was withdrawn by the State-respondents. After the judgment in the aforesaid case as well as in The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Tirtha Swamiar of Sri Shirur Mutt, AIR 1954 SC 282 (hereinafter referred to as ‘Shirur Muttthe Act 1951 was repealed by the Act 1959. Section 45 thereof empowers the Statutory Authorities to appoint an Executive Officer to administer the religious institutions. However, certain safeguards have been provided under various provisions including Section 107 of the Act 1959.F. On 31.7.1987, the Commissioner of religious endowment in exercise of his power under the Act 1959 appointed an Executive Officer. Consequent thereto, the Commissioner HR&CE passed an order dated 5.8.1987 defining the duties and powers of the Executive Officer, so appointed for the administration of the Temple.G. Aggrieved, the respondent no.6 challenged the said order by filing Writ Petition No.7843 of 1987. The High Court of Madras granted stay of operation of the said order dated 5.8.1987. However, the writ petition stood dismissed vide judgment and order dated 17.2.1997.H. Aggrieved, the respondent no.6 preferred Writ Appeal No.145 of 1997 and the High Court vide its judgment and order dated 1.11.2004 disposed of the said writ appeal giving liberty to respondent no.6 to file a revision petition before the Government under Section 114 of the Act 1959 as the writ petition had been filed without exhausting the statutory remedies available to the said respondent.I. The revision petition was preferred, however, the same stood dismissed vide order dated 9.5.2006 rejecting the contention of the respondent no.6 that the order dated 5.8.1987 violatedfundamental rights under Article 26 of the Constitution observing that by virtue of the operation of law i.e. statutory provisions of Sections 45 and 107 of the Act 1959, such rights were not available to the respondent no.6. In this order, the entire history of the litigation was discussed and it was also pointed out that the Executive Officer had taken charge of the Temple on 20.3.1997 and had been looking after the management of the Temple since then. The said order also revealed that the respondent no.6 could not furnish proper accounts of movable and immovable properties of the Temple and recorded the following finding ofpowers given to the Executive Officer, are the administration of the Temple and its properties and maintain these in a secular manner. Hence, the rights of the petitioners are not at all affected or interfered with, in any manner whatsoever the aim and reason behind the appointment of the Executive Officer is not for removing the petitioners who call themselves as trustees to thisJ. The respondent no.6 preferred Writ Petition No.18248 of 2006 for setting aside the order dated 9.5.2006 which was dismissed by the High Court vide judgment and order dated 2.2.2009 observing that the judgment referred to hereinabove in Writ Petition (C) Nos. 379-380 of 1951 titled MarimuthuDikshitar v. The State of Madras & Anr., reported in 1952 (1) MLJ 557 , wherein it was held that Dikshitars were a ‘religiouswould not operate as res judicata.K. Aggrieved, the respondent no.6 filed Writ Appeal No.181 of 2009. The present appellant Dr. Subramanian Swamy was allowed by the High Court to be impleaded as a party. The Writ Appeal has been dismissed vide impugned judgment and order datedIn Civil Appeal No. 10620/2013, the appellant has raised the issue of violation of the constitutional rights protected under Article 26 of the Constitution of India, 1950 (hereinafter referred to asin relation to the claim by Podhu Dikshitars (Smarthi Brahmins) to administer the properties of the Temple in question dedicated to Lord Natraja. The same gains further importance as it also involves the genesis of suchrights even prior to the commencement of the Constitution and the extent of exercise of State control under the statutory provisions of The Madras Hindu Religious and Charitable Endowments Act 1951 (hereinafter referred to as the ‘Actas well as the Tamil Nadu Hindu Religious and Charitable Endowments Act 1959 (hereinafter referred to as the ‘ActAppeal No. 10621/2013 is on behalf of Podhu Dikshitars claiming the same relief and Civil Appeal No. 10622/2013 has been filed by the appellants supporting the claim of the appellant in Civil Appeal No. 10621/2013.

Reasoning: 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.