We certify under Article 132 of the Constitution that it is a fit case for appeal to the Supreme Court. Notification quashed." (Emphasis added)...
...21. It is evident from the judgment of the High Court of Madras, which attained finality as the State withdrew the notification, that the Court recognised: a) That Dikshitars, who are Smarthi Brahmins, form and constitute a 'religious denomination'; b) Dikshitars are entitled to participate in admiistration of the Temple; and c) It was their exclusive privilege which had been recognised and established for over several centuries.... ...The declaration that "Dikshitars are religious denomination or section thereof" is in fact a declaration of their status and making such declaration is in fact a judgment in rem....
...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 on it In such a fact-situation, 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......41. It is submitted by Dr. Swamy that rules have to be framed defining the circumstances under which the powers under Section 45 of the Act 1959 can be exercised. The Act 1959 does not contemplate unguided or unbridled functioning. On the contrary, the prescription of rules to be framed by the State Government under Sections 116 read with Sections 45 and 65, etc. of the Act 1959 indicates that the legislature only intended to regulate and control any incidence of maladministration and not a complete replacement by introducing a Statutory authority to administer the Temple....
...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....
...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....
...it is not permissible for the State/Statutory Authorities to supersede the administration by
adopting any oblique/circuitous method. ...
...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.
Published: January 6, 2014 16:45 IST | Updated: January 6, 2014 17:54 IST
Chidambaram temple to be managed by priests: SC
PTI
The HinduDevotees bursing crackers on the premises of Natarajar temple in Chidambaram to express their joy over Supreme Court verdict on Monday. Photo: A. V. Raghunathan
The HinduA view of Chidambaram Natarajar Temple. Photo: C. Venkatachalapathy
The Supreme Court held that the Podu Dikshitars (priests) had a right to administer the temple as a religious denomination.
The famous Nataraja temple in Chidambaram, Tamil Nadu will be managed by priests and not by the state government, the Supreme Court on Monday ordered.
A bench of justices B. S. Chauhan and S. Bobde set aside the order of the Madras High Court which had in 2009 transferred the administration of the 1000-year-old Lord Shiva temple to the government.
The apex court passed the order on appeals filed by the temple’s priests and BJP leader Subramanian Swamy.
Mr. Swamy contended that an attempt was made after Independence to bring the temple administration under State control in August 1951 but the Supreme Court had held that the Podu Dikshitars had a right to administer the temple as a religious denomination.
Referring to the provisions of Tamil Nadu Hindu Religious and Charitable Endowments Act, Mr. Swamy had submitted, “Section 107 specifically bars the application of the Act to institutions coming under the purview of or enjoying the protection of Article 26 of the Constitution.”
He contended that if there were allegations of misappropriation of temple’s property then it should be dealt with under the provisions of Indian Penal Code and not by taking over the temple administration.
The state government in 1987 had appointed an official to manage the endowments and considerable assets and property owned by the temple.
Supreme Court’s verdict comes to rescue of Chidambaram temple
By Sandhya Jain on6 Jan 2014
The Supreme Court on Monday morning set aside the takeover of the sacred Nataraj temple at Chidambaram by the Tamil Nadu State Government, and paved the way for the return of the temple administration to its traditional custodians, the Podu Dikshitars, thus marking the opening of the year with a major civilisational victory for Hindu dharma. The Special Leave Petition by Dr Subramanian Swamy and the Podu Dikshitars was admitted by the Supreme Court; the State Government has been given an opportunity to argue why the temple should continue to be under its control.
The development is a landmark for Hindus and could pave the way for the return of all temples taken over by various State Governments, as Justices BS Chauhan and J Chalemeshwar ruled that ‘small and silly mistakes’ made by the trust cannot be grounds for the Government takeover of temples on a permanent basis. Temples maybe taken over for short periods to sort out problems. A major beneficiary of this decision will be the Shirdi Sai Baba temple in Nasik, Maharashtra, which has long been eyed by the State Government on account of the richness of the offerings made, which escalate with each passing year. Other prominent temples in the grip of respective State Governments include the Tirupati Balaji temple in Andhra Pradesh and the Tripura Sundari and Chauda Deota temples in Tripura.
The devout have long resented the takeover of temples whereby State Governments take over the huge temple coffers and use the same as per their whims, without regard to the sentiments and needs of the traditional guardians and the devotees. Tamil Nadu’s Hindu Religious & Charity Endowments (HR&CE) department controls 36,425 temples; 56 mutts; 47 temples belonging to mutts; and 1721 specific endowments and 189 trusts. The policy of interfering in temple administration in the south began with the British, but around 1840, they decided to give up this policy. Some major mutts agreed to administer some important temples and endowments so they could be run according to temple traditions, but only upon receipt of written agreements (Muchalikas) as a protection against the Raj again taking back the temples.
In this manner, the temple funds were used for the rituals of worship and upkeep of temples. But in 1925, the Madras Hindu Religious Endowments Act, 1923 (Act I of 1925) was passed for better administration of certain religious endowments. It was challenged and repealed in 1927 and thereafter amended several times; the Act XII of 1935 empowered the board to notify (takeover) a temple after giving reasons for the same. The first attempt to take over the Chidambaram Sabhanayagar temple in 1947 failed, but attempts continued to be made thereafter. The Indian Constitution of 1950 guaranteed certain special religious and administrative rights to religious denominations or sections thereof. But the then Madras Government passed the Hindu Religious & Charitable Endowments Act in 1951; it gave wide ranging powers to the Commissioner. The HR&CE immediately engaged in litigation with several leading temples whose traditional trustees sought the return of the temple management.
Devotees have long resented the department managing temple affairs because there is no accountability of the funds received, utilisation, and even agama rules are flouted in the quest for money, which is not the purpose for which temples are built. A small example is the issue ofprasadam stalls. For devotees, only food prepared piously in the temple kitchen and offered to the deities in the temple in the traditional manner is regarded as prasadam. But the HR&CE has been regularly auctioningprasadam stalls to the public (highest bidder) and in the process, food items from outside the temple premises are sold in packages inside the temple premises, a practice unheard of anywhere in the country.
Other shops and commercial activities are also being permitted within the temples premises. Temple hundies are a huge source of funds for the department. In the Chidambaram temple, the department illegally installed hundies though the Podu Dikshitars did not keep hundies traditionally; nor did they sell archana tickets. They only collect funds in kind when needed for temple upkeep and special activities. The Podu Dikshitars have been the archakas and trustees of the Chidambaram temple from time immemorial; they printed their temple constitution for the first time in 1849. A dikshitar gets the right to do sacramental service to lord Nataraja and participate in temple administration only after marriage. The community performs duty at the temple in groups of 20 and each batch stays for 20 days till each has in his turn performed the complete tour of puja at the different shrines of the temple where the daily pujas are held.
Though the daily administration of the temple is done by a nine-member management committee, all major decisions are taken by the general assembly of Podu Dikshitars in a democratic way. The dikshitars live ascetic lives; the temple possesses invaluable offerings of jewellery made by former rulers and rich merchants, which are physically verified as per rules once in four days, 20 days and six months. There has been no embezzlement till date. The Chidambaram dikshitars are different from other Brahmin sects in that they are found only in Chidambaram town and form an endogamous clan; they marry only within their community. They are fervent devotees of Shiv. Their puja rituals are special and are found nowhere else in the Hindu world, and are believed to have been expounded by the sage Patanjali. The Podu Dikshitars were among the first to open the temple to all castes of Hindus. Chidambaram is possibly the only ancient temple in Tamil Nadu which permits non-Hindu devotees to have darshan of the deities including the presiding deity Nataraj. In the two main festivals celebrated every year, devotees of all communities are permitted to participate with equal respect and status.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.10620 OF 2013
Dr. Subramanian Swamy
...Appellant
Versus
State of Tamil Nadu & Ors.
...Respondents
With
CIVIL APPEAL NO.10621 OF 2013
Sabhayanagar Temple
...Appellant
Versus
State of Tamil Nadu & Ors.
...Respondents
With
CIVIL APPEAL NO.10622 OF 2013
T. Sivaraman & Ors.
...Appellants
Versus
State of Tamil Nadu & Ors.
...Respondents
J U D G M E N T
Dr. B. S. CHAUHAN, J.
1. All these appeals have been filed against the impugned
judgment and order dated 15.9.2009 passed in Writ Appeal No.181 of
2009 by the High Court of Madras affirming the judgment and order
dated 2.2.2009 of the learned Single Judge passed in Writ Petition
No.18248 of 2006 rejecting the claim of the writ petitioner - Podhu
Dikshitars to administer the Temple.
In 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
as 'Constitution') in 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 such pre-existing rights 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 'Act 1951') as well as the Tamil Nadu Hindu Religious and
Charitable Endowments Act 1959 (hereinafter referred to as the 'Act
1959').
Civil Appeal 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.
2. For convenience in addressing the parties and deciding the
appeals, we have taken Civil Appeal No. 10620/2013 as the leading
appeal. The facts and circumstances giving rise to the appeal are as
under:
A. That Sri Sabhanayagar Temple at Chidambaram (hereinafter
referred to as the 'Temple') is 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 'Act
1927'), which 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 the 'Board') appointed 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 'religious denomination' and their position vis-`-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 Mutt
Case'), the 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 violated
respondent's fundamental 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 of fact:
"The powers 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 this Temple." (Emphasis added)
J. 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 Marimuthu Dikshitar v. The State of Madras & Anr.,
reported in 1952 (1) MLJ 557, wherein it was held that Dikshitars were
a 'religious denomination', would 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 dated 15.9.2009.
Hence, these appeals.
3. The appellant-in-person has submitted that Article 26 of
the Constitution confers certain fundamental rights upon the citizens
and particularly, on a 'religious denomination' which can neither be
taken away nor abridged. In the instant case, the Dikshitars had been
declared by this Court, in a lis between Dikshitars and the State and
the Religious Endowments Commissioner, that they were an acknowledged
`religious denomination' and in that capacity they had a right to
administer the properties of the Temple. Though in view of the
provisions of Section 45 read with Section 107 of the Act 1959, the
State may have a power to regulate the activities of the Temple, but
lacks competence to divest the Dikshitars from their right to manage
and administer the Temple and its properties. It was strenuously
contended that the High Court committed an error by holding that the
earlier judgment of the Division Bench in Marimuthu Dikshitar (Supra)
would not operate as res judicata. Therefore, the appeal deserves to
be allowed.
4. Per contra, Shri Dhruv Mehta and Shri Colin Gonsalves,
learned Senior counsel, and Shri Yogesh Kanna, learned counsel have
opposed the appeal contending that no interference is required by this
court as the High Court has rightly held that the aforesaid judgment
of the Madras High Court or the judgment of this Court in Shirur Mutt
case (Supra) would not operate as res judicata even if the earlier
dispute had been contested between the same parties and touches
similar issues, for the reason that Article 26(d) applies only when
the temple/property is owned and established by the 'religious
denomination'. In the instant case, the Temple is neither owned by
respondent No. 6, nor established by it. Thus, the appeal is liable
to be dismissed.
Shri Subramonium Prasad, learned Addl. Advocate General
appearing for the State and the Statutory authorities has opposed the
appeal contending that the Executive Officer has been appointed to
assist the Podhu Dikshitars and to work in collaboration with them and
the said respondent has not been divested of its powers at all, so far
as the religious matters are concerned. Thus, the matter should be
examined considering these aspects.
5. We have considered the rival submissions made by learned
counsel for the parties and perused the record.
6. Before entering into the merits of the case, it may be
relevant to refer to the relevant statutory provisions.
Section 27 of the Act 1959 provides that the trustee would
be bound to obey all lawful orders issued by the Government or the
statutory authorities.
Section 45 of the Act 1959 provides for appointment and
duties of Executive Officer and relevant part thereof reads:
"(1) Notwithstanding anything contained in this Act, the
Commissioner may appoint, subject to such conditions as may be
prescribed, an Executive Officer for any religious institution
other than a Math or a specific endowment attached to a Math.
(2) The Executive Officer shall exercise such powers and
discharge such duties as may be assigned to him by the
Commissioner.
Provided that only such powers and duties as appertain to the
administration of the properties of the religious institutions
referred to in sub-section (1) shall be assigned to the
executive officer.
xxx xxx xxx
xxx
On the other hand, Section 107 of the Act 1959 provides that the
Act would not affect the rights guaranteed under Article 26 of the
Constitution. It reads:
"Nothing contained in this Act shall, save as otherwise
provided in Section 106 and in Clause (2) of Article 25 of the
Constitution, be deemed to confer any power or impose any duty
in contravention of the rights conferred on any religious
denomination or any Section thereof by Article 26 of the
Constitution."
Section 116 of the Act 1959 reads as under:
"116. Power to make rules-
(1) The Government may, by notification, make rules to carry
out the purposes of this Act.
(2) Without prejudice to the generality of the foregoing
power, such rules may provide for-
(i) all matters expressly required or allowed by this
Act to be prescribed;
xx xx xx
(3) All rules made and all notifications issued under this Act
shall, as soon as possible after they are made or issued, be
placed on the table of the Legislative Assembly and shall be
subject to such modifications by way of amendment or repeal as
the Legislative Assembly may make either in the same session or
in the next session."
7. Article 26 of the Constitution provides for freedom to
manage religious affairs and it reads as under:
"26. Freedom to manage religious affairs - Subject to public
order, morality and health, every religious denomination or any
section thereof shall have the right -
(a) to establish and maintain institutions for religious and
charitable purposes;
(b) to manage its own affairs in matters of religion;
(c) to own and acquire movable and immovable property; and
(d) to administer such property in accordance with law."
(Emphasis added)
8. The word "such" has to be understood in the context it has
been used. A Constitution Bench of this Court in Central Bank of
India v. Ravindra & Ors., AIR 2001 SC 3095 dealt with the word "such"
and held as under:
"43. Webster defines "such" as "having the particular quality or
character specified; certain, representing the object as already
particularised in terms which are not mentioned. In New
Webster's Dictionary and Thesaurus, meaning of "such" is given
as "of a kind previously or about to be mentioned or implied; of
the same quality as something just mentioned (used to avoid the
repetition of one word twice in a sentence); of a degree or
quantity stated or implicit; the same as something just
mentioned (used to avoid repetition of one word twice in a
sentence); that part of something just stated or about to be
stated". Thus, generally speaking, the use of the word "such" as
an adjective prefixed to a noun is indicative of the draftsman's
intention that he is assigning the same meaning or
characteristic to the noun as has been previously indicated or
that he is referring to something which has been said before.
This principle has all the more vigorous application when the
two places employing the same expression, at earlier place the
expression having been defined or characterised and at the
latter place having been qualified by use of the word "such",
are situated in close proximity."
(See also: Ombalika Das & Anr. v. Hulisa Shaw, AIR 2002 SC 1685).
9. The aforesaid provisions make it clear that the rights of
the 'denominational religious institutions' are to be preserved and
protected from any invasion by the State as guaranteed under Article
26 of the Constitution, and as statutorily embodied in Section 107 of
the Act 1959.
10. 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 the Constitution.
The term 'religious denomination' means 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 'religious denomination' would stand on a different
footing altogether from the right to maintain its own affairs in
matters of religion. (Vide: Acharya Maharajshri 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 Nallor Marthandam Vellalar & Ors. v.
Commissioner, Hindu Religious and Charitable Endowments & Ors., AIR
2003 SC 4225).
11. The Constitution Bench of this Court in S. Azeez Basha &
Anr. v. Union of India, AIR 1968 SC 662, while dealing with the
rights of minority to establish educational institutions, also dealt
with the provisions of Article 26 of the Constitution and observed
that the words "establish and maintain" contained in Article 26 (a)
must be read conjunctively. A 'religious denomination' can only claim
to maintain that institution which has been established by it. The
right to maintain institutions would necessarily include the right to
administer them. The right under Article 26(a) of the Constitution
will only arise where the institution is established by a 'religious
denomination' and only in that event, it can claim to maintain it.
While dealing with the issue of Aligarh Muslim University, this Court
rejected the claim of Muslim community of the right to administer on
the ground that it had not been established by the Muslim community
and, therefore, they did not have a right to maintain the university
within the meaning of Article 26(a) of the Constitution.
12. In Khajamian Wakf Estates etc. v. State of Madras etc.,
AIR 1971 SC 161, the Constitution Bench of this Court held that the
religious denomination can own, acquire properties and administer them
in accordance with law. In case they lose the property or alienate
the same, the right to administer automatically lapses for the reason
that property ceases to be their property. Article 26(d) of the
Constitution protects the rights of 'religious denomination' to
establish and administer the properties as clauses (c) and (d)
guarantee a fundamental right to any religious denomination to own,
acquire, establish and maintain such properties.
13. In Sri Sri Sri Lakshamana Yatendrulu & Ors. v. State of
A.P. & Anr., AIR 1996 SC 1414, this Court examined the constitutional
validity of some of the provisions of the Andhra Pradesh Charitable
and Hindu Religious Institutions and Endowments Act 1987. The Court
also examined the object of the scheme framed under Section 55 of the
said Act and held as under:
"..That the power of the Commissioner to frame scheme is not
absolute but is conditioned upon reasonable belief on the basis
of the report submitted by the Deputy Commissioner and there
must be some material on record for entertaining a reasonable
belief that the affairs of the Math and its properties are being
mismanaged or that funds are misappropriated or that the
mathadhipathi grossly neglected in performing his duties. Prior
enquiry in that behalf is duly made in accordance with the rules
prescribed thereunder. The members of the committee so
appointed shall be the persons who are genuinely interested in
the proper management of the Math, management of the properties
and useful utilization of the funds for the purpose of which the
endowment is created. Thus, the paramount consideration is only
proper management of the Math and utilisation of the funds for
the purpose of the Math as per its customs, usage etc."
(Emphasis added)
The Court further held:
"Such a scheme can be only to run day-to-day management of the
endowment and the committee would be of supervisory mechanism as
overall incharge of the Math."
(Emphasis added)
As the Act 1987 did not provide the duration for which the scheme
would remain in force, the court held that "the duration of the scheme
thus framed may also be specified either in the original scheme or one
upheld with modification, if any, in appeal." The Court held:
"36. The object of Section 55 appears to be to remedy
mismanagement of the math or misutilisation of the funds of the
math or neglect in its management. The scheme envisages
modification or its cancellation thereof, which would indicate
that the scheme is of a temporary nature and duration till the
evil, which was recorded by the Commissioner after due enquiry,
is remedied or a fit person is nominated as mathadhipathi and is
recognised by the Commissioner. The scheme is required to be
cancelled as soon as the nominated mathadhipathi assumes office
and starts administering the math and manages the properties
belonging to, endowed or attached to the math or specific
endowment."
(Emphasis added)
Thus, this Court clarified that there cannot be super-session of
administration in perpetuity. It is a temporary measure till the evil
gets remedied.
14. In the aforesaid backdrop, we shall examine the present
appeals.
The learned Single Judge while deciding Writ Petition No.
18248/2006 examined the case raising the following question:
"Observations of the Division Bench in 1952 (1) MLJ 557 that
Podhu Dikshitars are a 'denomination' are to be tested in the
light of well-settled principles laid down in various decisions
of the Supreme Court."
The learned Single Judge as well as the Division Bench made it a
pivotal point while dealing with the case.
15. The Constitution Bench of this Court in Shirur Mutt (Supra)
categorically held that a law which takes away the right to administer
the religious denomination altogether and vests it in any other
authority would amount to a violation of right guaranteed in clause
(d) of Article 26 of the Constitution. Therefore, the law could not
divest the administration of religious institution or endowment.
However, the State may have a general right to regulate the right of
administration of a religious or charitable institution or endowment
and by such a law, State may also choose to impose such restrictions
whereof as are felt most acute and provide a remedy therefore. (See
also: Ratilal Panachand Gandhi & Ors. v. State of Bombay & Ors., AIR
1954 SC 388; and Pannalal Bansilal Pitti & Ors. v. State of A.P. &
Anr., AIR 1996 SC 1023).
16. The Shirur Mutt case (Supra) had been heard by the Division
Bench of the Madras High Court alongwith Marimuthu Dikshitar (Supra),
and against both the judgments appeals were preferred before this
court. However, in the case of respondent no.6, the appeal was
dismissed as the State of Madras had withdrawn the impugned
notification, while in Shirur Mutt case the judgment came to be
delivered wherein this Court held as under:
"15. As regards Art. 26. the first question is, what is the
precise meaning or connotation of the expression "religious
denomination" and whether a Math could come within this
expression. The word "denomination" has been defined in the
Oxford Dictionary to mean "a collection of individuals classed
together under the same name : a religious sect or body having a
common faith and organisation and designated by a distinctive
name". It is well known that the practice of setting up Maths as
centres of theological teaching was started by Shri
Sankaracharya and was followed by various teachers since then.
After Sankara came a galaxy of religious teachers and
philosophers who founded the different sects and sub sects of
the Hindu religion that we find in India at the present day.
Each one of such sects or sub-sects can certainly be called
a religious denomination, as it is designated by a distinctive
name, --in many cases it the name of the founder --- and has a
common faith and common spiritual organization. The followers of
Ramanuja, who are known by the name of Shri Vaishnabas,
undoubtedly constitute a religious denomination; and so do the
followers of Madhwacharya and other religious teachers. It is a
fact well established by tradition that the Udipi Maths were
founded by Madhwacharya himself and the trustees and the
beneficiaries of these Maths profess to be followers of that
teacher. The High Court has found that the Math in question is
in charge of the Sivalli Brahmins who constitute a Section of
the followers of Madhwacharya.As Art. 26 contemplates not merely
a religious denomination but also a Section thereof, the Math or
the spiritual fraternity represented by it can legitimately come
within the purview of this Article.
16. The other thing that remains to be considered in regard to
Art. 26 is, what, is the scope of clause (b) of the Article
which speaks of management 'of its own affairs in matters of
religion?" The language undoubtedly suggests that there could be
other affairs of a religious denomination or a Section thereof
which are not matter of religion and to which the guarantee
given by this clause would not apply. The question is, where is
the line to be drawn between what are matters of religion and
what are not?
xx xx xx
22. Under Art. 26(b), therefore a religious denomination or
organization enjoys complete autonomy in the matter of deciding
as to what rites and ceremonies are essential according to the
tenets of the religion they hold and no outside authority has
any jurisdiction to interfere with their decision in such
matters."
This Court 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.
18. The issues involved herein are as to whether Dikshitars
constitute a 'religious denomination' and whether they have a right to
participate in the administration of the Temple. In fact, both the
issues stood finally determined by the High Court in the earlier
judgment of Marimuthu Dikhsitars (Supra) referred to hereinabove and,
thus, doctrine of res judicata is applicable in full force.
19. The Division Bench of Madras High Court while deciding the
dispute earlier in Marimuthu Dikshitar (Supra), traced the history of
Dikshitars and examined their rights, etc. The Court concluded:
"Looking at it from the point of view, whether the Podu
Dikshitars are a denomination, and whether their right as a
denomination is to any extent infringed within the meaning of
Article 26, it seems to us that it is a clear case, in which it
can safely be said that the Podu Dikshitars who are Smartha
Brahmins, form and constitute a religious denomination or in any
event, a section thereof. They are even a closed body, because
no other Smartha Brahmin who is not a Dikshitar is entitled to
participate in the administration or in the worship or in the
services to God. It is their exclusive and sole privilege which
has been recognized and established for over several centuries.
In the case of Sri Sabhanayakar Temple at Chidambaram,
with which we are concerned in this petition, it should be clear
from what we have stated earlier in this judgment, that the
position of the Dikshitars, labelled trustees of this Temple, is
virtually analogous to that of a Matathipathi of a Mutt, except
that the Podu Dikshitars of this Temple, functioning as
trustees, will not have the same dominion over the income of the
properties of the Temple which the Matathipathi enjoys in
relation to the income from the Mutt and its properties.
Therefore, the sections which we held ultra vires in relation to
Mutts and Matathipathis will also be ultra vires the State
Legislature in relation to Sri Sabhanayakar Temple, Chidambaram
and the Podu Dikshitars who have the right to administer the
affairs and the properties of the Temple. As we have already
pointed out even more than the case of the Shivalli Brahmins, it
can be asserted that the Dikshitars of Chidambaram form a
religious denomination within the meaning of Article 26 of the
Constitution.
We certify under Article 132 of the Constitution that it is a
fit case for appeal to the Supreme Court. Notification
quashed."
(Emphasis added)
20. On the basis of the certificate of fitness, the State of
Madras preferred Civil Appeal No.39 of 1953 before this Court against
the said judgment and order of the Madras High Court, which was heard
by the Constitution Bench of this Court on 9.2.1954. However, the
said appeal stood dismissed as the State withdrew the notification
impugned therein. Relevant part of the order runs as under :
"The Appeal and the Civil Miscellaneous Petition above mentioned
being called on for hearing before this Court on the 9th day of
February, 1954 upon hearing the Advocate-General of Madras on
behalf of the Appellants and counsel for the respondents and
upon the said advocate-General appearing on behalf of the State
of Madras agreeing to withdraw the notification G.O. Ms. No.894
Rural Welfare dated 28.8.1951 published in Fort St. George
Gazette dated 4.9.1951 in the matter of the Sabhanayagar Temple,
Chidambaram, Chidambaram Taluk, South Arcot District/the Temple
concerned in this appeal/this Court doth order that the appeal
and the civil miscellaneous petition above mentioned be and the
same are hereby dismissed."
21. It is evident from the judgment of the High Court of
Madras, which attained finality as the State withdrew the
notification, that the Court recognised:
a) That Dikshitars, who are Smarthi Brahmins, form and constitute a
'religious denomination';
b) Dikshitars are entitled to participate in administration of the
Temple; and
c) It was their exclusive privilege which had been recognised and
established for over several centuries.
22. 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 in
question.
The literal meaning of "res" is "everything that may form an object
of rights and includes an object, subject-matter or status" and "res
judicata" literally means "a matter adjudged a thing judicially acted
upon or decided; a thing or matter settled by judgments". "Res
judicata pro veritate accipitur" is the full maxim which has, over the
years, shrunk to mere "res judicata", which means that res judicata is
accepted for truth.
24. The doctrine contains the rule of conclusiveness of the
judgment which is based partly on the maxim of Roman jurisprudence
"interest reipublicae ut sit finis litium" (it concerns the State that
there be an end to law suits) and partly on the maxim "nemo debet bis
vexari pro uno et eadem causa" (no man should be vexed twice over for
the same cause).
Even an 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. ED-, Appakadh Ayiassa Bi & Ors., AIR 1949 PC 302; and
Mohanlal Goenka v. Benoy Kishna Mukherjee & Ors., AIR 1953 SC 65).
25. In Smt. Raj Lakshmi Dasi & Ors. v. Banamali Sen & Ors., AIR
1953 SC 33, this Court while dealing with the doctrine of res
judicata referred to and relied upon the judgment in Sheoparsan Singh
v. Ramnandan Singh, AIR 1916 PC 78 wherein it had been observed as
under:
"........ the rule of res judicata, while founded on ancient
precedents, is dictated by a wisdom which is for all time.....
Though the rule of the Code may be traced to an English source,
it embodies a doctrine in no way opposed to the spirit of the
law as expounded by the Hindu commentators. Vijnanesvara and
Nilakantha include the plea of a former judgment among those
allowed by law, each citing for this purpose the text of
Katyayana, who describes the plea thus: 'If a person though
defeated at law, sue again, he should be answered, ''you were
defeated formerly". This is called the plea of former
judgment.'... And so the application of the rule by the courts
in India should be influenced by no technical considerations of
form, but by matter of substance within the limits allowed by
law''
26. This Court in Satyadhyan Ghosal & Ors. v. Smt. Deorajin
Debi & Anr., AIR 1960 SC 941 explained the scope of principle of res-
judicata observing as under:
"7. The principle of res judicata is based on the need of giving
a finality to judicial decisions. What it says is that once a
res is judicata, it shall not be adjudged again. Primarily it
applies as between past litigation and future litigation, When a
matter - whether on a question of fact or a question of law -
has been decided between two parties in one suit or proceeding
and the decision is final, either because no appeal was taken to
a higher court or because the appeal was dismissed, or no appeal
lies, neither party will be allowed in a future suit or
proceeding between the same parties to canvass the matter again.
This principle of res judicata is embodied in relation to suits
in S. 11 of the Code of Civil Procedure; but even where S. 11
does not apply, the principle of res judicata has been applied
by courts for the purpose of achieving finality in litigation.
The result of this is that the original court as well as any
higher court must in any future litigation proceed on the basis
that the previous decision was correct."
A similar view has been re-iterated by this court in Daryao & Ors.
v. The State of U.P. & Ors., AIR 1961 SC 1457; Greater Cochin
Development Authority v. Leelamma Valson & Ors., AIR 2002 SC 952; and
Bhanu Kumar Jain v. Archana Kumar & Anr., AIR 2005 SC 626.
27. The Constitution Bench of this Court in Amalgamated
Coalfields Ltd. & Anr. v. Janapada Sabha Chhindwara & Ors., AIR 1964
SC 1013, considered the issue of res judicata applicable in writ
jurisdiction and held as under:
"...Therefore, there can be no doubt that the general
principle of res judicata applies to writ petitions filed under
Article 32 or Article 226. It is necessary to emphasise that the
application of the doctrine of res judicata to the petitions
filed under Art. 32 does not in any way impair or affect the
content of the fundamental rights guaranteed to the citizens of
India. It only seeks to regulate the manner in which the said
rights could be successfully asserted and vindicated in courts
of law."
28. In Hope Plantations Ltd. v. Taluk Land Board, Peermade &
Anr., (1999) 5 SCC 590, this Court has explained the scope of
finality of the judgment of this Court observing as under:
"One important consideration of public policy is that the
decision pronounced by courts of competent jurisdiction should
be final, unless they are modified or reversed by the appellate
authority and other principle that no one should be made to face
the same kind of litigation twice ever because such a procedure
should be contrary to consideration of fair play and justice.
Rule of res judicata prevents the parties to a judicial
determination from litigating the same question over again even
though the determination may even be demonstratedly wrong. When
the proceedings have attained finality, parties are bound by the
judgment and are estopped from questioning it."
(See also: Burn & Co., Calcutta v. Their Employees, AIR 1957 SC 38;
G.K. Dudani & Ors. v. S.D. Sharma & Ors., AIR 1986 SC 1455; and Ashok
Kumar Srivastav v. National Insurance Co. Ltd. & Ors., AIR 1998 SC
2046).
29. A three-Judge Bench of this court in The State of Punjab v.
Bua Das Kaushal, AIR 1971 SC 1676 considered the issue and came to the
conclusion that if necessary facts were present in the mind of the
parties and had gone into by the court, in such a fact-situation,
absence of specific plea in written statement and framing of specific
issue of res judicata by the court is immaterial.
30. A similar view has been re-iterated by this court in Union
of India v. Nanak Singh, AIR 1968 SC 1370 observing as under:
"This Court in Gulabchand Chhotalal v. State of Gujarat, AIR
1965 SC 1153 observed that the provisions of Section 11 of the
Code of Civil Procedure are not exhaustive with respect to all
earlier decision operating as res judicata between the same
parties on the same matter in controversy in a subsequent
regular suit, and on the general principle of res judicata, any
previous decision on a matter in controversy, decided after full
contest or after affording fair opportunity to the parties to
prove their case by a Court competent to decide it, will operate
as res judicata in a subsequent regular suit. It is not
necessary that the Court deciding the matter formerly be
competent to decide the subsequent suit or that the former
proceeding and the subsequent suit have the same subject-matter.
There is no good reason to preclude, such decisions on matters
in controversy in writ proceedings under Article 226 or Article
32 of the Constitution from operating as res judicata in
subsequent regular suits on the same matters in controversy
between the same parties and thus to give limited effect to the
principle of the finality of decisions after full contest."
31. It is a settled legal proposition that the ratio of any
decision must be understood in the background of the facts of that
case and the case is only an authority for what it actually decides,
and not what logically follows from it. "The court should not place
reliance on decisions without discussing as to how the factual
situation fits in with the fact-situation of the decision on which
reliance is placed."
32. 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
the society.
The declaration that "Dikshitars are religious denomination or
section thereof" is in fact a declaration of their status and making
such declaration is in fact a judgment in rem.
33. In Madan Mohan Pathak & Anr. v. Union of India & Ors., AIR
1978 SC 803, a seven-Judge Bench of this Court dealt with a case
wherein the question arose as to whether the order passed by the
Calcutta High Court issuing writ of mandamus directing the Life
Insurance Corporation of India (hereinafter referred to as L.I.C.) to
pay cash bonus for the year 1975-76 to its class 3 and 4 employees in
terms of the settlement between the parties was allowed to become
final. Immediately after the pronouncement of the judgment, the
Parliament enacted the LIC (Modification of Settlement) Act, 1976. The
appeal filed against the judgment of Calcutta High Court was not
pressed by LIC and the said judgment was allowed to become final.
This Court rejected the contention of the LIC that in view of the
intervention of legislation, it was not liable to meet the liability
under the said judgment. The Court held that there was nothing in the
Act which nullifies the effect of the said judgment or which could set
at naught the judgment or take away the binding character of the said
judgment against LIC. Thus, the LIC was liable to make the payment in
accordance with the said judgment and it could not be absolved from
the obligation imposed by the said judgment.
34. This Court, while considering the binding effect of the
judgment of this Court, in State of Gujarat & Anr. v. Mr. Justice R.A.
Mehta (Retd.) & Ors., AIR 2013 SC 693, held:
"There can be no dispute with respect to the settled legal
proposition that a judgment of this Court is binding,.....It is
also correct to state that, even if a particular issue has not
been agitated earlier, or a particular argument was advanced,
but was not considered, the said judgment does not lose its
binding effect, provided that the point with reference to which
an argument is subsequently advanced, has actually been decided.
The decision therefore, would not lose its authority, "merely
because it was badly argued, inadequately considered or
fallaciously reasoned". (Vide: Smt. Somavanti & Ors. v. The
State of Punjab & Ors., AIR 1963 SC 151; Ballabhdas Mathuradas
Lakhani & Ors. v. Municipal Committee, Malkapur, AIR 1970 SC
1002; Ambika Prasad Mishra v. State of U.P. & Ors., AIR 1980 SC
1762; and Director of Settlements, A.P. & Ors. v. M.R. Apparao &
Anr., AIR 2002 SC 1598)."
35. The issue can be examined from another angle. Explanation
to Order XLVII, Rule 1 of Code of Civil Procedure, 1908 (hereinafter
referred to as the 'CPC') 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: Rajendra Kumar & 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 on it.
In such a fact-situation, 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.
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 Marimuthu Dikshitar (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 `religious denomination' or 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.
39. 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 the respondent
no.6., etc.
40. Section 116 of the Act 1959 enables the State Government to
frame rules to carry out the purpose of the Act for "all matters
expressly required or allowed by this Act to be prescribed". Clause 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.
41. It is submitted by Dr. Swamy that rules have to be framed
defining the circumstances under which the powers under Section 45 of
the Act 1959 can be exercised. The Act 1959 does not contemplate
unguided or unbridled functioning. On the contrary, the prescription
of rules to be framed by the State Government under Sections 116 read
with Sections 45 and 65, etc. of the Act 1959 indicates that the
legislature only intended to regulate and control any incidence of
maladministration and not a complete replacement by introducing a
Statutory authority to administer the Temple.
42. Section 2(16) CPC defines the term `prescribed` as prescribed
by rules. Further, Section 2(18) CPC defines rules as Rules and forms
as contained in the First Schedule or made under Section 122 or
Section 125 CPC. Sections 122 and 125 CPC provide for power of the
High Court to make rules with respect to its own functioning and
procedure. Therefore, it appears that when the legislature uses the
term `prescribed`, it only refers to a power that has simultaneously
been provided for or is deemed to have been provided and not
otherwise. Similarly, Section 2(n) of the Consumer Protection Act,
1986 defines prescribed as "prescribed by rules made by the State
Government or as the case may be, by the Central Government under the
Act".
43. Section 45 of the Act 1959 provides for appointment of an
Executive Officer, subject to such conditions as may be prescribed.
The term 'prescribed' has not been defined under the Act. Prescribed
means prescribed by rules. If the word 'prescribed' has not been
defined specifically, the same would mean to be prescribed in
accordance with law and not otherwise. Therefore, a particular power
can be exercised only if a specific enacting law or statutory rules
have been framed for that purpose. (See: Manohar Lal Chopra v. Rai
Bahadur Rao Raja Seth Hiralal, AIR 1962 SC 527; Hindustan Ideal
Insurance Co. Ltd. v. Life Insurance Corporation of India, AIR 1963 SC
1083; Maharashtra SRTC v. Babu Goverdhan Regular Motor Service Warora
& Ors., AIR 1970 SC 1926; and Bharat Sanchar Nigam Ltd. & Anr. v. BPL
Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597).
44. Shri Subramonium Prasad, learned AAG, has brought the
judgment in M.E. Subramani & Ors. v. Commissioner, HR&CE & Ors., AIR
1976 Mad 264, to our notice, wherein the Madras High Court while
dealing with these provisions held that the Commissioner can appoint
an Executive Officer under Section 45 even if no conditions have been
prescribed in this regard. It may not be possible to approve this
view in view of the judgments of this Court referred to in para 41
supra, thus, an Executive Officer could not have been appointed in the
absence of any rules prescribing conditions subject to which such
appointment could have been made.
45. However, Shri Subramonium Prasad, learned AAG, has
submitted that so far as the validity of Section 45 of the Act 1959 is
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 Balmer Lawrie & 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: Jagir Singh 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.
50. Thus, the appeals are allowed. Judgments/orders impugned
are set aside. There shall be no order as to costs.
.............................................J.
(DR. B.S. CHAUHAN)
.........................................J.
(S.A. BOBDE)
New Delhi,
January 6, 2014
ITEM NO.1A COURT NO.4 SECTION XII
(For judgment)
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
CIVIL APPEAL NO(s). 10620 OF 2013
DR. SUBRAMANIAN SWAMY Appellant (s)
VERSUS
STATE OF TAMIL NADU & ORS. Respondent(s)
WITH
Civil Appeal NO. 10621 of 2013
Civil Appeal NO. 10622 of 2013
Date: 06/01/2014 These Appeals were called on for hearing today.
For Appellant(s) Petitioner-In-Person
Mr. K.R. Sasiprabhu,Adv.
Mr. K. Parmeshwar,Adv.
Mr. S.R. Setia,Adv.
For Respondent(s) Mr. Subramonium Prasad,AAG,Tamilnadu
Mr. M. Yogesh Kanna,Adv.
Ms. Vanita Chandrakant giri,Adv.
Mr. A.Santha Kumaran,Adv.
Mr. B.Balaji,Adv.
Mr. R.V. Kameshwaran,Adv.
Mr. P.R. Kovilon Poongkuntron,Adv.
Mrs. Geetha Kovilan,Adv.
Mr. Abhisth Kumar,Adv.
Mr. S.K. Verma,Adv.
Respondent-In-Person
Mr. Naresh Kumar,Adv.
Hon'ble Dr. Justice B.S. Chauhan pronounced the judgment of
the Bench comprising of His Lordship and Hon'ble Mr. Justice S.A.
Bobde.
Appeals are allowed in terms of the signed reportable
judgment.
(O.P. Sharma) (M.S. Negi)
Court Master Assistant Registrar
(Signed reportable judgment is placed on the file)
http://courtnic.nic.in/supremecourt/qrydisp.asp WRITTEN SUBMISSIONS:IN NATARAJA TEMPLE CASE
SLP(C)No.30278 of 2009 on November 20, 2013
I. PRELIMINARIES
1. This SLP No. 30278 of 2009 [Vol I, p.56-75] is against the 2009 DB judgment of MHC dt.15.09.09 [Vol I, p. 1-55] on Writ Appeal WA No.181 filed by Respondent 3 [Sri Sabhanayagar Temple] was dismissed. I was an Impleaded Party in the said WA.
2. The Counter of the State of Tamil Nadu, i.e., Respondent No. 1, is on p. 280-347. My Reply Affidavit is on p.394-448 [starting p 396, para 3].
3. Prayer is on p.7.
II. THE MAIN ARGUMENT IN THIS SLP
1. The Dates are on p. D to I grounds for this SLP are on page 59--. The List of Dates starts on p. D and ends on page I.
2. This temple has been the openly declared target of take over and destruction by the Atheistic Dravidian Movement, that was inspired by the British Imperialists to frustrate the national freedom movement led by Gandhiji and a galaxy of Tamil Nadu leaders. The movement failed but later co-opted
3. The first attempt after Independence was vide Notification No. G.O. Ms. 894 dated 28-8-1951 in which several charges of mismanagement and misappropriation were made against the PDs.
4. This G.O. was challenged before the DB of MHC [CV-I, p. ].
5. The Hon’ble DB quashed the said G.O. holding the PDs to be a religious denomination and hence protected under Article 26 of the Constitution [Vol-II, p.95&102].
6. The concept of denomination is not defined in the Constitution, or in the HR&CE Acts but is in the said judgment of the DB of the MHC which was clubbed with the Shirur Mutt case.
7. Religious denomination was defined in the said 1951 Shirur Mutt case [(1952) 1 MLJ 557; SLP p. 76-118; Citation Volume (CV)-I p. 1-50 at p.34-35] which draws on the Oxford Dictionary to define it as “a collection of individuals classed together under the same name: a religious sect or body having a common faith and organization and designated by a distinctive name”.
8. The Division Bench then held the Podhu Dikshidars [p. 601; CV-I p. 45] to be a ‘Religious Denomination’ with a clear finding that: “Looking at from the point of view, whether Podhu Dikshidars are a denomination and whether their right as a denomination is to any extent infringed within the meaning of Article 26 it seems to us that it is a clear case in which it can be safely said that the PDs who are Smartha Brahmins, form and constitute a religious denomination, or in any event, a section thereof.”
9. In the said judgment of the Hon’ble DB, it was also held that “the charges were without any foundation and proceeded on a total misconception of the facts” [CV-I p.49-50 or Vol-II p.116].
1. Hence the impugned G.O. No. Ms. 894 of 1951 was quashed even on merits [ Vol-II, p.117].
2. The said DB judgment of the Madras High Court [V-II, p.76-118 at 94-95; and 118] became final in 1954 when the CA No.39 of 1953 filed by the then Madras government against the DB judgment was dismissed by a Constitutional Bench of this Hon’ble Court [Vol-II, p.119-123].
3. Hence any legal challenge to the denominational status of the PDs, since then, is ab initio void and barred as Res Judicata.
4. However flouting this bar, the TN government again after 52 years, issued G.O. 168 of 2006 to take-over temple administration [Vol p. ].
5. This G.O. notified the approval of TN government of the appointment of an E.O. u/s 45(2) of HT&CE Act (1959) [ Vol p. ]
6. This G.O. was challenged inter alia, on the ground of Res judicata in Writ Petition WP No. 18248 of 2006, and heard by a Single Judge Bench[SLP-2 Vol II p. 151-203]. It was dismissed.
7. In that WP it was prayed ( Volume? p.196) that G.O.168 of 2006 [Vol II p.133-50] be quashed.
8. The Hon’ble Single Judge trivialized the claim of Denomination status of the Petitioners upheld in (1952) 1 MLJ ??? “……..are to be tested in light of well-settled principles laid down in various decisions of the Supreme Court”. Hence, the bar of Res judicata was declined [Vol.II p.173, para 34 ].
9. Respondent No.1’s Counter affidavit before the Hon’ble Single Judge however had not denied the claim of Podhu Dikshidars in their WP that they constitute a religious denomination.
10.Respondent 1 had made a mere passing reference in the Counter [citing (1997) 4 SCC 606; CV-II p.249-83 see Vol-II p.173 para 36], that the “Supreme Court has held that the believers of Siva worship do not belong to a denomination or sect”.
11. This is a non-sequitur since the world of Siva worshippers is a floating body and not a definite class and organization to be called a denomination.
12.This Single Judge Bench dismissal of the PDs’ WP was challenged in a WA [SLP No.32111 of 2009 (SLP-2, p.300-16)], that was filed against this order of the Hon’ble Single Judge passed on their WP 18248 of 2006.
13.In WA 181-83 of 2009 of the PDs before the DB of MHC, neither of the Respondents 1 & 2 filed any counter affidavit, against the averment of the PDs that they are a religious denomination-- and hence that they were entitled to the protection of Article 26 of the Constitution.
14.The Division Bench of the MHC in its judgments of 2009 [Vol-I, p.1-55, p.241-42 at para 44-47] have also trivialised the decision in the Shirur Mutt case, i.e., of the PDs being a religious denomination, both terming it as a mere non-binding “observation”.
15.The 2009 DB judgment goes even further in blandly and baldly stating that the “observations” of the Shirur Mutt case “are not in consonance with the three tests enunciated by the Supreme Court in various judgments mentioned above,..” [para 44, p. 241 in SLP].
16.Hon’ble Supreme Court has already at least once before come down heavily on such trivialization.
17.In Murali’s case[(2005) 6 SCC166 at paras 16,17, and 19 on page 171; or CV-II 317 at p. 321-22] this Hon’ble Court has stated: “We fail to understand how an executable part of decree… and declares the Institution to be of a religious denomination can be described as merely ‘incidental observation’, ‘obiter dicta’, ‘not part of ratio decidendi’ .------”
18.In the impugned MHC Single Judge and Division Bench judgments a bald and untenable distinction was made between the concepts of “religious denomination” and “denominational temple”.
19.This is without any precedent or merit. The former concept in fact encompasses the latter. The Respondents appear to have adopted this presumed erroneous dichotomy before Your Lordships here, as a desperate and futile attempt to circumvent the bar of res judicata.
20.Thus the Hon’ble Division Bench in 2009 wrongly held that [ SLP p.237, para 37]: “This observation [of the PDs being a religious denomination], by itself, cannot be regarded as a finding recorded on the issue as to whether the temple is a denominational temple. That issue was not directly and substantially in issue in the Shirur Mutt case”.
21.Respondent No.1 in the Counter in my SLP herein [see p. 399-403] has now for the first time stated that: “Hon’ble High Court has decided the religious denomination of Podhu Dikshidars alone in the above case in (1952) 1 MLJ 557[p. 399 SLP]. Read my reply SLP p. 400-403.
22.In may be noted at this stage that the PDs are held not only as a mere ‘denomination’ but in fact a ‘religious denomination’ because they not only satisfy the criteria of the Oxford dictionary to be a denomination, but a close reading of the Shirur Mutt judgment points to their founding and managing of the Sri Sabhanayagar temple.
23.In the Constitutional Bench judgment in Venkataramana Devaru v. State of Mysore [(1958) SCR 895; CV-II p. 221-48 at p. 232] this Hon’ble Court specifically defined a religious denomination of the Gowda Saraswat Brahmins “not as a mere denomination”, but “a sect associated with the foundation and maintenance of the Sri Venkataramana Temple.”
24.The language and import of Article 26 is also clear: that a religious denomination will establish and maintain a religious institution including a temple-- and hence a denominational temple.
25.Consequently, a temple founded and managed by a religious denomination is by definition a denominational temple. The Respondents thus are making a distinction that is absurd.
26.Hence, I submit on these authorities on law, that the PDs are a religious denomination within the meaning of Article 26 of the Constitution, and consequently the Sri Sabhanayagar temple is a denominational temple.
27.Such a temple may or not be a public temple, or vice versa [in SLP 404-06, the Saurashtra Sabha case]. In any case, Article 25(2)(b) requires every temple to be “substantially” open to the general Hindu public i.e., subject only to reasonable restrictions on the access permitted [Devaru case, op.cit.].
28.The Hon’ble Division Bench of the MHC also referred to a new HR&CE Act having being enacted in 1959 repealing the 1951 Act. Hence, the Hon’ble Bench opined[p….]that the matter of denomination has to be denovoconsidered.
29.Neither the Hon’ble Single Judge nor the Hon’ble Judges of the Division Bench have referred to the Constitution Bench judgment of this Hon’ble Court in the Pathak’s case [AIR 1978 SC 803 paras 24- 26 CV-II 347 at p. 372-75] on Res Judicata, as to why this judgment would not be applicable or binding or relevant in this matter.
30.In (2010) 3 SCC 353 at 376 para 60 the principle of Res Judicata has been further re-iterated.
31.In the classic: The Doctrine of Res Judicata [Butterworth, London, 1996]originally authored by G.Spencer Bower in 1924 and revised by Hon’ble Justice Handley of Australia, after a review of all English law cases, it is re-iterated that a final decision even if subsequently proven wrong is binding on the same issues and same parties, as Res Judicata [p.14].
32. I had filed Written Submissions before the Division Bench after my impleadment in which I had brought the Pathak judgment to the Hon’ble Bench’s attention.
33.But I could not lead oral arguments because of the violence directed against me by sympathisers of the LTTE in open court while arguing the matter before their Lordships of the Hon’ble Division Bench. The Report of Justice Sri Krishna Committee gives full facts of those sordid events.
34.Thus, the Hon’ble DB of the MHC in the Shirur Mutt case finding that the PDs are a religious denomination and entitled to the protection of Article 26, acts a bar of res judicata in all subsequent litigation between the same parties on the same issue, even if the laws have changed since, or the finding of the Court was erroneous.
35.I submit, in view of the cited judgments of this Hon’ble Court, any proceedings herein between the same parties and same issues under the HR&CE Act, is hit and barred by Res Judicata and the Sri Sabhanayagar Temple is protected by Article 26(c)&(d) of the Constitution because the PDs are a religious denomination.
36.The Hon’ble DB of MHC in 2009 was not persuaded by the argument of Res Judicata and dismissed the WA.
37.Hence this SLP.
Concisely stated, my two submissions before Your Lordships are:
First, it is settled law since 1953, that the Podu Dikshidars constitute a religious denomination within the meaning and of Article 26 of the Constitution and hence entitled to the protection of the said fundamental right.
The impugned DB judgment of 2009 of the Hon’ble the Madras High Court, upholding the said G.O. 106, is therefore vitiated byRes Judicata and thus and ought to be set aside.
This prayer is further fortified since admittedly Section 45 r/w Section 107 of the HR&CE Act is inapplicable [ As admitted by the Respondent in Counter...]
Second, the take-over of temple properties comes under the purview of Article 31(A)(1)(b).
A judgment of a Seven Judge Constitutional Bench of this Hon’ble Court [reported in AIR 1969 SC 168 at 176, CV-II p. 388 at p. 400-01] and Karnataka [(1998) 2 Kar L.J 587 [DB] at p.609, para 38], Kerala, Punjab, and AP High Courts have clarified that the scope of “property” in that Article covers other items than estate or land. Temple lands and properties thus would come within the ambit of Art.31A(1)(b).
Period limitation was incorporated in Article 31A(1)(b) of the Constitution by way of the First Amendment in 1951, and before the HRE Act 1951, which therefore contained the five year limitation.
Thus, if any take-over by government is without a period limit then it becomes ultra vires Art 31A(1)(b), if challenged as infringing Article 14 and/or 19 [here it can be under 19(g)].
The impugned G.O. No.168 is therefore not only ultra vires Article 26 which protects denominations, but also Article 31 A(1)(b) of the Constitution, since there is no indication in the text of the said G.O. that the acquisition of the management of the resources and properties of the said temple, is only for a limited period .
Significantly, the 1951 HRE Act in Section 64(4) [p. 454 in the Brief] had placed a limit of 5 years for a notification for take-over, to remain valid.
But for inexplicable reasons, in the 1959 HR&CE Act, it was replaced by Section 72 [p. 449-453] after deleting the period limitation.
Thus Section 45 acquisition besides being impermissible for Denominations vide Section 107 of the HR&CE Act of 1959, is also ultra vires Article 31A(1)(b) of the Constitution.
It also is ultra vires Article 27 since the State is not constitutionally empowered to further or to derogate any religion, as well as the Preamble regarding state commitment to secularism.
Prolonged take-over of temples will for example require paying salaries and stipend to priests and archakas from State funds.
Since 1959, there is not a single instance of the Respondents returning to the trustees a taken over temple.
After an amendment to the Act in 1965, take-over and retention of a temple became a discretionary open-ended option for the Government vide Section 72(6) [p. 450] for to rescind or not to, the G.O..
The 1965 amendment now empowers the government to take-over temples even if there is no prima facie evidence of mismanagement. This is against case laws.
In fact it has been brazenly disclosed by the authorities that it is government policy to take-over temples [in Jyotiramalingam case, AIR 1985 Mad 341; CV-I p.69 at p.72-74].
There are today about 45,000 temples in the Respondents’ control most for over several decades, with no oversight agency to monitor the use or misuse of temple funds. Hand over a list.
In any case as held by the Constitutional Bench [op.cit.,], a mere discretion of the Government to return the property is not an acceptable answer.
PRAYER
Brahma Chellaney 
R Jagannathan 
