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Judgment
M. Jaichandren, J.—Since, the issues arising for consideration, and the facts and circumstances of both the Writ Petitions are similar in
nature, a common order is passed.
In W.P (MD). No. 14229 of 2009, the Petitioner has sought for the issuance of a Writ of Mandamus to direct the Respondents not to interfere
with the Petitioner''s religious rights of chanting Vedas during ''Vaikunta Ekadasi'' festival and receiving the respects in the name of ''Vaikunta
Ekadasi Thiruvaranga Veda Paaraayana Saatrumurai Brahmaratham'' (itFz;l Vfhjrp jpUtuA;f Btj ghuhaz rhw;W Kiw gpuk;kujk;) which is due to
be adorned by the Petitioner, from 28.12.2009 till 06.01.2010. Likewise, in W.P(MD). No. 13055 of 2010, the Petitioner has sought for a Writ
of Mandamus to forbear the Respondents, their men, agents or servants or anyone claiming under them from, in any manner, preventing or
interfering with the rights of this Petitioner in performing his turn of service of chanting the Vedas and his turn of receiving the honours of
Brahmaratham, during the ''Kaisika Ekadasi'' festival and to direct the Respondents to adorn the Petitioner with all due respects that were being
adorned on him hitherto, during the said festival.
With regard to the Writ Petition, in W.P. (MD). No. 14229 of 2009, the learned Counsels appearing on behalf of the Respondents had
submitted that as the prayer of the Petitioner is for the issuance of a Writ of Mandamus to restrain the Respondents from interfering with his rights
in performing his service of chanting Vedas and adorning due respects and privileges during the festival of Vaikunta Ekadasi Thiruvaranga Veda
Paaraayana Saatrumurai Brahmaratham'' (itFz;l Vfhjrp jpUtuA;f Btj ghuhaz rhw;W Kiw gpuk;kujk;), from 28.12.2009 till 06.01.2010, the Writ
Petition has become infructuous.
With regard to the Writ Petition, in W.P. (MD). No. 13055 of 2010, it has been stated that Sree Ranganatha and Sreemathi Ranganayaki, who
is the religious head of Vaishnavites. His disciple Sree Koorathazhavan and his wife had a son, Sree Veda Vyasa Battar alias Sree Parasara Battar
Swamigal. Sree Battar Swamigal is one of the 74 Vaishnava Acharya Gurus. In Arulmighu Sree Ranganathar temple, at Srirrangam, Trichy,
various respects were being conferred on Veda Vysa Battar and his descendants, from time immemorial, for more than a 1000 years. It includes
Stalathar Kainkariyam, Sri Rengesa Purohithar or Koil Vathyaar Kainkeryam, Thirumanjana Kattiya Sevai Kainkeryam, Madathammal,
Antharangasthanigam, Palooliyam, Thirupathiyar Ooliyam, Thirumanajan Ooliyam, Panchanga Padana Kainkaryam, Stalathar paramaparai
suzhalmurai arangavalar, Kaisiga Purana Padana Sevai Kainkeryam, Thiruvaranga Vedaparayan Mirasu Kainkeryam etc. These respects were
made by Sriramanujar, who made the scheme for the Arulmighu Sree Ranganathar temple, at Srirrangam, Trichy. Further, the Petitioner is a
descendant of Sree Veda Vyasa Battar Swamigal and he has been rendering services in Arulmighu Sree Ranganathar temple, at Srirrangam,
Trichy. The Petitioner has been rendering services to the temple, hereditarily, and it has also been recognized by the temple Devasthanam. The
temple administration reciprocates his services by conferring certain respects to the Petitioner, as it had been done to his ancestors. Thus, it is clear
that the practice of conferring certain honors on the Petitioner is based on the long usage and custom that had been practiced for a very long time.
It has also been stated that the Petitioner is the immediate descendant of Sree Veda Vyasa Ranganatha Battar Swamigal. The said Sree Veda
Vyasa Rengaraja Battar is the immediate descendant of Shri Raghunatha Battar. Late Vijayaranga Battar was the direct disciple of Shrirama Battar
by adoption.
For the sake of convenience, the gemology of Shri Vedavyasa Battar Thiruvamsam has been shown below:
Sree Veda Vyasa Battar Thiruvamsam
|
_________________________________|________________________________________
| | |
| | |
Veda Vyasa Late.Azhagiya Late.Raghunatha
Ranganatha Battar Singa Battar Battar
| | |
| | |
Shri.Lakshmi Narasimha Late.Srirama S.V.Rangaraja
Battar Battar Battar
|
|
Late Vijayaranga Battar
It has also been stated that in Arulmighu Sree Ranganathar temple, at Srirrangam, Trichy, the three branches of Sree Veda Vyasa Battar
Swamigal family were reciting Puranas and Vedas and they had also been enjoying their due privileges, in accordance with the customs and
practices, as they have been prevalent from time immemorial. While so, on an application made by the Petitioner, the second Respondent had
passed an order, on 22.12.2002, directing that the Petitioner and Vedavysa R. Rengaraja Battar were to enjoy the privileges due to them and that
they should discharge the duties of late Vijayarenga Battar. The Petitioner had to discharge the duties on two days and Vedavysa R. Rengaraja
Battar had to discharge the duties for one day. Aggrieved by the said order, the said Vedavysa R. Rengaraja Battar, had preferred an appeal
before the first Respondent, the Commissioner, Hindu Religious and Charitable Endowments Department, Chennai. The order of the second
Respondent, dated 22.12.2002, had been reversed by the first Respondent by his order, dated 09.04.2003. The said order of the first
Respondent, dated 09.04.2003, had been challenged before this Court, by way of a Writ Petition, in W.P. (MD). No. 15586 of 2003, which is
still pending on the file of this Court. The order of interim stay granted by this Court, on 18.08.2003, in W.P.M.P. (MD). No. 19151 of 2003, had
been modified by a subsequent order passed by this Court and it had been confirmed by a Division Bench of this Court, by its order, dated
13.12.2003, made in W.A. No. 2120 of 2004. In spite of the said order passed by this Court, the second Respondent is attempting to adorn the
respects and privileges, in favor of Vedavysa R. Rengaraja Battar, contrary to the orders passed by this Court. It has also been stated that the
three branches of Sree Veda Vyasa Battar Swamigal should enjoy their rights, privileges and respects in rotation, as per their respective shares, in
rendering the services of chanting the Puranas and the Vedas. The Petitioner has been enjoying 2/3rd share and late Vijayarenga Battar and
Vedavysa R. Rengaraja Battar have been enjoying 1/6th share each.
It has also been stated that according to the customs and usages, which have been in practice for a long time, Sree Veda Vyasa Battar
Swamigal branch and Parasara Battar would enjoy Kaishika Brahmaratham and Saatrumurai Brahmaratham, on rotation basis. As such, Sree
Veda Vyasa Battar Swamigal branch enjoys Kaishika Brahmaratham and the other branch enjoys Saatrumurai Brahmaratham and vice versa. The
Petitioner would chant Purnas and would receive the respects of Kaishika Brahmaratham for a year. In the following year, he would chant Vedas
and receive the respects of Saatrumurai Brahmaratham. This practice would continue for a period of four years. On completion of the period of
four years, the turn of late Vijayarenga Battar''s branch would start adorning and it would be for a period of one year, when he could enjoy either
Kaishika Brahmaratham or Saatrumurai Brahmaratham. On completion of the said period of one year, once again the Petitioner''s turn for another
period of four years would begin. Even though this practice has been followed for a very long time by the temple authorities, they had permitted
Vedavysa R. Rengaraja Battar to enjoy the rights, privileges and respects, out of turn, and beyond the period for which he is entitled to. In such
circumstances, the Petitioner had submitted a representation to the second Respondent, on 16.12.2009, before the commencement of the festival
of ''Vaikunta Ekadasi'', which had been scheduled to begin from the 28.12.2009. Even though it was only the Petitioner, who was entitled to enjoy
the rights and privileges, no action had been taken by the first and the second Respondents. Therefore, the Petitioner had been compelled to file a
Writ Petition, in W.P (MD). No. 14229 of 2009, before this Court in praying for a direction directing the Respondents not to interfere with the
Petitioner''s religious rights of chanting Vedas during the festival of ''Vaikunta Ekadasi'' and for receiving the respects in the name of ''Vaikunta
Ekadasi Thiruvaranga Veda Paaraayana Saatrumurai Brahmaratham''.
It has been further stated that the main issue in the present Writ Petition pertains to Kaisika Puranam and Brahmaratham for Kaisika Ekadasi
days. The Petitioner has stated that he is entitled to receive the respects by turn during Brahmaratham, which is to take place on the first of
Karthigai. The Petitioner has stated that the second Respondent has been acting in a vindictive manner against the Petitioner in order to satisfy
certain vested rights of some persons. The second Respondent had issued a show cause notice, dated 20.09.2010, to the three families of Sree
Veda Vyasa Battar Swamigal Thiruvamasam, for the stoppage of Brahmaratham, stating that the carrying of men in Palanquins inside the temple
premises has to be prohibited, as it is an inhuman practice and therefore, the said practice has to be stopped. Therefore, the Petitioner had sent a
suitable reply to the second Respondent, by a notice, dated 06.09.2010, issued through his Counsel. The Petitioner had sought for certain
information from the second Respondent as to the basis on which the Brahmaratham respects were being given and the particulars of the
beneficiaries, who had been given such respects, from the year, 1930. However, the second Respondent by his reply, dated 04.10.2010, had
stated that no such information was available on his records.
It has also been stated by the Petitioner that certain newspapers had carried the news that the rendering of Brahmaratham respects is proposed
to be cancelled. Thus, the Petitioner has a serious apprehension that the respects due to him, which had been practiced for nearly a thousand years
would be stopped. In fact, the Petitioner''s right to receive the respects can be derived from the earlier proceedings and communications. The
proceedings of the Deputy Magistrate of Trichinapoli Division, dated 22.11.1890, and the proceedings of the District Magistrate of Trichinapoli in
favor of Tenkalaiyars Brahmaratham, dated 10.01.1890, affirm the rights of the Petitioner. The Petitioner''s right for Brahmaratham have been
reaffirmed by this Court in a Second Appeal, in S.A. No. 1071 of 1931, in a Scheme Decree framed by this Court, in A.S. Nos. 328 and 355 of
1913, dated 19.10.1915, reported in ILR 39 Madras 700. A reply, dated 10.10.2010, had been issued by the second Respondent, to the
explanation submitted by the Petitioner, through his Counsel, on 02.10.2010, wherein, certain false and baseless allegations have been made for
the stopping of the Brahmaratham honors. The decision of the second Respondent to stop the honors is without jurisdiction and it is arbitrary and
mala fide in nature. It had also been submitted that Section 25 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959,
provides that the Commissioner and the other authorities mentioned therein and every other person exercising powers of superintendence or
control under the said Act, shall observe forms and ceremonies appropriate to the religious institution concerned. Therefore, the attempts made by
the second Respondent to stop the rendering of respects and honors in favor of the Petitioner is violative of the provisions contained in Articles 14,
21 and 25 of the Constitution of India. It has also been stated that the first and the second Respondents do not have the authority or the power or
the jurisdiction to prevent the carrying of the Petitioner in a Palanquin, voluntarily, by some of his own associates and his followers. In such
circumstances, the Petitioner has preferred the present Writ Petition before this Court, under Article 226 of the Constitution of India.
In the counter affidavit filed on behalf of the first Respondent, it has been stated that the averments and allegations made by the Petitioner have
been denied. It has been stated that the Writ Petition in W.P.(MD). No. 13055 of 2010, is not maintainable, since there is an efficacious
alternative remedy available to the Petitioner, u/s 63(e) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959. The Writ
Petition is not maintainable also on the ground that necessary parties, including Vedavysa R. Rengaraja Battar, belonging to the other branches of
Shri Vedavyasa Battar Thiruvamsam, has not been impleaded as parties to the present Writ Petition. Further, a dispute between the Petitioner and
Vedavyasa R. Rengaraja Battar is pending on the file of the District Munsif, Trichy, in the Civil Suit, in O.S. No. 840 of 2006.
It has also been stated that the two Writ Petitions, in W.P. (MD). Nos. 14229 of 2009 and 13055 of 2010 had been filed showing the name
of the Petitioner differently. No proof has been filed by the Petitioner to show that he had changed his name as Sri Kovil Vedavyasa R. Lakashmi
Narasimha Battar Swami. It has also been stated that the genealogy described by the Petitioner, in his affidavit filed in support of the Writ Petition,
is not admitted by the second Respondent. The allegation of the Petitioner that the temple Devasthanam is in collusion with certain rival claimants is
totally false and it is without any basis. It has also been stated that the claims made by the Petitioner that he is entitled to certain respects, and
honors, as stated in the affidavit filed in support of the Writ Petition, cannot be said to be totally correct. In fact, the second Respondent, had taken
a stand that whoever is entitled to the right of Brahmaratham at ''Kaishika Ekadasi'' would be provided with all the honors, except the claim to be
carried in a Palanquin inside the premises of the temple, since, it is against the principles of Vaishnavisham and as it is against the principles
enshrined in the Constitution of India. It is also against the human dignity and the basic human rights of those who would carry the Palanquin. The
proceedings of the Deputy Magistrate of Trichinapoli Division, dated 22.11.1980, do not affirm any right in favor of the Petitioner.
It has also been stated that any claim made by a person relating to customary and hereditary rights have to be established by the authorities
concerned, in accordance with the provisions of Section 63(e) of the Tamil Nadu Hindu Religious and Charitable Endowments Act,1959. Hence,
the present Writ Petition is devoid of merits and it is liable to be dismissed.
Mr. V. Raghavacharai, learned Counsel appearing on behalf of the Petitioner had submitted that the Petitioner is recognized as a religious guru
by his disciples and his followers. The claim of the Petitioner that he is entitled to certain rights, respects and honors cannot be held to be in
violation of the human rights of those who are involved in rendering such respects, privileges and honors. The fact that the Petitioner is entitled to
certain customary rights, privileges and honors cannot be in dispute, as it has been in practice for a very long time. In fact, it is noted from the
recorded evidence that such practices had been followed for at least a period of 120 years. The fact that certain practices relating to
Brahmaratham has been in vogue for a long period has been recognized in the proceedings of the Deputy Magistrate of Trichinapoli Division, dated
22.11.1980. Therefore, it is not open to the authorities of the Tamil Nadu Hindu Religious and Charitable Endowments Department and others
connected with the temple Devasthanam to restrict or to alter the customs and usages, which have been in practice from time immemorial. Such
restrictions would be unreasonable and contrary to Articles 25 and 26 of the Constitution of India.
It has also been submitted that Section 63 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, will not be applicable to
the present case, as the issues arising for the consideration of this Court, in the present Writ Petition, would be governed by the provisions of
Section 105 of the Act. Nothing contained in the Act would affect any honor, emolument or perquisite to which any person is entitled to by custom
or otherwise, in any religious institution or its established usage, in regard to any other matter. Section 25 of the Act makes it clear that it would be
obligatory on the part of the Commissioner, the Tamil Nadu Hindu Religious and Charitable Endowments Department and the other authorities
concerned to give to effect the practices, usages and customs and the forms and ceremonies appropriate to the religious institution concerned.
Religious practices would go to the root of the religious faith and beliefs of a Citizen of India, who is entitled to the fundamental rights recognized in
Part-III of the Constitution of India, including the religious freedoms.
The learned Counsel appearing on behalf of the Petitioner had relied on the following decisions in support of his contentions:
16.1. In Sri Shirur Mutt v. Commissioner, H.R.E Board, Madras 1952 (1) MLJ 557, it has been held as follows:
The right to freedom of religion under Article 25 of the Indian Constitution is conferred upon all persons and is not confined to citizens. Article 26
relates to the freedom of a religious denomination to manage its own religious affairs. Under Article 25 the guarantee is of freedom of conscience
and the right freely to profess, practice and propagate religion. It is subject to public order and morality and health and Article 26 also is subject to
a similar limitation. In Article 25 power is conferred on the State to make any law (a) regulating or restricting any economic, financial, political or
other secular activity which may be associated with religious practice and Sub-clause (2) (b) providing for social welfare and reform or the
throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus. Freedom of conscience is the minimum of
religious liberty. It is intangible as it is subjective and is not capable of legal protection except that a person may not be compelled by law to
abandon his belief, creed or opinion. A man may not only hold his religious opinions but may put them to practice and translate them into articulate
force by profession, practice and propagation. Unless these are also protected there is no meaning in protecting freedom of conscience. Religion
has been defined by Field J. in ''Davis v. Beason'' (1890) 133 US 333: (33 Law Ed 637), as meaning a man''s
views of his relations to his Creator, and to the obligations they impose of reverence for his being and character, and of obedience to his call. It is
often confounded with the ''Cultus'' or form of worship of a particular sect, but is distinguishable from the latter.
Profession of religion implies, in our opinion, the right of the person who believes in a religion to state his creed and also to propagate it either by
speech or by writing or by any other visible means. The practice of religion is the practical expression of his belief in the particular ""form of private
or public worship. He may himself carry on worship or partake in a worship carried on by others. The exercise of these rights, however, is not
altogether free from restrictions. It cannot be doubted that in the public interests and in the interests of and for the welfare of the State, the
expression of one''s religion should not be allowed to degrade into licentiousness or to perpetrate a crime or endanger public order, morality or
health.
16.2. In Seshammal and Others, Vs. State of Tamil Nadu, , it has been held as follows:
This Court in Sardar Syedna Taher Saifuddin Saheb Vs. The State of Bombay, has summarized the position in law as follows (pages 531 and
532).
The content of Arts. 25 and 26 of the Constitution came up for consideration before this Court in the The Commissioner, Hindu Religious
Endowments, Madras Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt., ; Mahant Sri Jagannath Ramanuj Das and Another Vs. The State
of Orissa and Another, ; Sri Venkataramana Devaru and Others Vs. The State of Mysore and Others, Durgah Committee, Ajmer v. Syed Hussain
Ali The Durgah Committee, Ajmer and Another Vs. Syed Hussain Ali and Others, , and several other cases and the main principles underlying
these provisions have by these decisions been placed beyond controversy. The first is that the protection of these articles in not limited to matters
of doctrine or belief they extend also to acts done in pursuance of religion and therefore contain a guarantee for rituals and observances,
ceremonies and modes of worship which are integral parts of religion. The second is that what constitutes an essential part of a religious or religious
practice has to be decided by the courts with reference to the doctrine of a particular religion and include practices which are regarded and include
practices which are regarded by the community as a part of its religion.
16.3. In Smt. Ass Kaur (Deceased) by L.Rs. Vs. Kartar Singh (Dead) by L.Rs. and Others, , it has been held as follows:
Custom is one of the three sources of Hindu law. Custom may override a statute subject, of course, to a clear proof of usage.
Hindu law recognizes three types of customs: local custom, class custom and family custom. The courts below have held that the parties were
governed by Zimindara custom. Whether the said custom is a general custom, or a special custom or for that matter a family custom has not been
stated. The customary law prevailing in the State of Punjab has received a statutory sanction by reason of the Punjab Laws Act, 1872, Sections 5
and 7 whereof read as under:
Decisions in certain cases to be according to native law.-In questions regarding succession, special property of females, betrothal, marriage,
divorce, dower, adoption, guardianship, minority, bastardy, family relations, wills, legacies, gifts, partitions, or any religious usage or institution, the
rule of decision shall be-
(a) any custom applicable to the parties concerned, which is not contrary to justice, equity or good conscience, and has not been by this or any
other enactment altered or abolished, and has not been declared to be void by any competent authority;
(b) the Muhammadan law, in cases where the parties are Muhammadans, and the Hindu law, in cases where the parties are Hindus, except insofar
as such law has been altered or abolished by legislative enactment or is opposed to the provisions of this Act, or has been modified by any such
custom as is above referred to.
Local customs and mercantile usages when valid:All local customs and mercantile usages shall be regarded as valid, unless they are contrary to
justice, equity or good conscience, or have, before the passing of this Act, been declared to be void by any competent authority.
.......
We may, however, notice that customary law has been recorded in Rattigan''s Digest of the Customary Law. The courts below have
categorically held the law to be applicable in the instant case is the customary law having regard to the fact that the parties belonged to the
community of Sidhu Jats.
The court can also take judicial notice of such customs in terms of Section 57 of the Evidence Act, 1872. As and when a custom has
repeatedly been recognized by the courts, the same need not be proved. Reference in regard to the Punjab ""general custom"" may be made to
Ujagar Singh6 and Bawa Singh v. Taro.
The learned Counsel for the Petitioner had also submitted that the dispute which had arisen for adjudication in the suit, in O.S. No. 840 of
2006, is relating to the sharing of the privileges and honors amongst the three branches of Shri Vedavyasa Battar Thiruvamsam. It cannot be said
that the Petitioner cannot maintain the present Writ Petition due to the pendency of the said suit before the District Munsif Court, Trichy, in the
Civil Suit, in O.S. No. 840 of 2006. The custom or usage which is neither illegal nor immoral cannot be curtailed by any authority or person
belonging to the Tamil Nadu Hindu Religious and Charitable Endowments Department or Devasthanam, as it would infringe on the fundamental
rights of the Petitioner, enshrined in Articles 25 and 26 of the Constitution of India.
With regard to the Writ Petition, in W.P. (MD). No. 13055 of 2010, it had been submitted that the Writ Petition filed by the Petitioner is not
maintainable in view of the fact that there is a Civil Suit pending on the file of the District Munsif Court, Trichy, in O.S. No. 840 of 2006, with
regard to the share of the respects, privileges and honors amongst the family members of the three branches of Shri. Vedavyasa Bhattar
Thiruvamsam. Without a decision being rendered in the said suit, the second Respondent would not be in a position to recognize the rights,
privileges and honors said to be due to the Petitioner. Further, a Writ of Mandamus, as preferred by the Petitioner cannot be said to be
maintainable, as it would relate to disputed questions of facts.
The learned Counsel appearing on behalf of the second Respondent had submitted that there are no mala fide motives in the decision of the
second Respondent to stop Brahmaratham honours of carrying persons in Palanquins inside the temple premises, as it involves issues relating to
human dignity and the basic human rights of those persons who would be carrying the Palanquins. The Chimmanthari Union had passed a
resolution stating that they would not carry the Palanquin. Further, the temple Trust Board had also passed a resolution in resolution No. 107
stating that the custom and usage of carrying persons belonging to Shri. Vedavyasa Bhattar Thiruvamsam would be contrary to the principles
enshrined in the Constitution of India, as it would involve issues relating to human dignity and other such human rights. The temple authorities are
prepared to render certain privileges and honors in favor of the Petitioner, except the unacceptable practice of carrying him in a Palanquin inside
the premises of the temple.
It had also been submitted that the Petitioner has initiated a number of litigations against the administrators of the temple and the other
authorities of the Tamil Nadu Hindu Religious and Charitable Endowments Department by making frivolous and unacceptable claims. It is not open
to the Petitioner to pray for a Writ of Mandamus to direct the concerned Respondents to render certain privileges and honors in favor of the
Petitioner without establishing his claims before the appropriate authority, as per Section 63(e) of the Tamil Nadu Hindu Religious and Charitable
Endowments Act, 1959. Any order passed u/s 63(e) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 , could be
challenged by the Petitioner by way of an appeal, u/s 69 of the said Act, before the Commissioner of the Tamil Nadu Hindu Religious and
Charitable Endowments Department. Thereafter, it would be open to him to move the Sub-ordinate Court, u/s 70 of the Act, if he is still aggrieved.
There is also a provision for the filing of a first appeal before this Court. In fact, even a Civil Suit is not maintainable, in respect of the issues arising
for the consideration of this Court, as per Section 108 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959. He had also
submitted that the Writ Petition is not maintainable due to the non-joinder of the necessary parties, who are the members of the other branches of
Shri. Vedavyasa Bhattar Thiruvamsam.
The learned Counsel appearing on behalf of the second Respondent had also relied on the following decisions in support of his contentions:
(i) In Mayalagu Ambalam and others v. KR.PR. Karuppiah Ambalam (died) and Ors. 1991(2) MLJ 21
(ii)In S. Murugan @ Sakkarai Poosari and S. Dharmalingam Poosari Vs. The Joint Commissioner, Hindu Religious and Charitable Endowment
Board, The Assistant Commissioner/Executive Officer and S.A. Rajendran Poosari, .
(iii) In Muthamil Selvam V.A. Manickam 2009(4) CTC 377.
At this stage of the hearing of the Writ Petitions, certain impleading petitions have been filed, in M.P. (MD). Nos. 2 to 4, in W.P. (MD). No.
13055 of 2010. The Petitioner, in M.P. (MD). No. 2 of 2010, has claimed that he is a human rights activist, who has been striving for the
protection of human rights and human dignity in the State of Tamil Nadu. He is an Advocate practicing at Madurai and the State Level Joint
Secretary of the Centre for Protection of Civil Liberties, Organization, which is working for the Protection of Civil Liberties and for the promotion
of the rights relating to human dignity.
The Petitioner has further stated that the inhuman and undignified customary practices cannot be allowed to be practiced, as it would be in
violation of the principles enshrined in the Constitution of India and as it is against the public policy. Therefore, such practices which have been
vehemently criticized by the great leaders of the Nation, like Dr. Ambedkar and E.V.R. Periyar, cannot be allowed to be practiced in certain
religious institutions.
M.P. (MD). No. 3 of 2010, has been filed on behalf of the Human Rights Protection Centre, Trichy, Tamil Nadu, stating that the Petitioner''s
Society, which is a registered Society, having branches in 12 districts in the State of Tamil Nadu has been organizing and leading various
campaigns against human rights violations in the State of Tamil Nadu. It has been stated that the customs and usages by which persons are carried
in Palanquins in the temple premises, in the name of Brahmaratham, is unreasonable, discriminatory and contrary to human dignity. The right to
religion guaranteed, under Articles 25 and 26 of the Constitution of India, are not absolute, as they could be subject to reasonable restrictions
imposed by the State. The principles of equity enshrined in the Constitution of India would cast an obligation on the State to ensure that all human
beings are treated equally, without any discrimination on the basis of caste, color or religion. While so, it would be illegal and improper to permit
the practice of carrying of persons in Palanquins inside the temple premises. It would also be contrary to the dictum of the Supreme Court laid
down in N. Aditiyan v. The Travancore Devaswom Board and others 2003 1 L.W.97.
The Petitioner in M.P. (MD). No. 4 of 2010 has stated that he is a Co-Ordinator of an Association called ""Periyar Thathuva Maiyam"" based
at Srirangam, Trichy. The said Association is striving to promote rationalist ideas and scientific thinking among the general public, based on the
ideals promoted by E.V.R. Periyar. It has been stated that the practice of carrying persons in Palanquins inside the temple premises cannot be
permitted, as it would be in violation of the principles of equality enshrined in Article 14 of the Constitution of India. It would also be infringing on
the human dignity of those who are carrying the persons in Palanquins. The said practice would also be in violation of Articles 39A and 51A(h) of
the Constitution of India.
The learned Counsels appearing on behalf of the impleading Petitioners had further submitted that the impleading Petitioners are necessary and
proper parties to the present Writ Petition, as they would be in a position to place before this Court the various factual and legal issues, for this
Court to arrive at an appropriate decision.
The learned Counsel appearing on behalf of the first Respondent, in M.P. (MD). Nos. 2 to 4, who is the Petitioner in the above Writ Petitions,
had filed a common counter affidavit stating that the miscellaneous petitions are not maintainable, either in law or on facts. It has been stated that
the impleading Petitioners are neither necessary nor proper parties to the Writ Petition, in W.P. (MD). No. 13055 of 2010. Their presence is not
necessary to decide the issues arising for the decision of this Court. The main issue in the Writ Petition relates to the recognition and rendering of
certain customary privileges and honors, in favor of the Petitioner, by the temple authorities, relating to the temple administration, including the first
and second Respondents in the Writ Petitions. Further, the impleading Petitioners cannot have any interest or right in the issues arising for the
decision of this Court in the present Writ Petition. He had also submitted that the limited scope of the present Writ Petition cannot be enlarged by
impleading the Petitioners in the miscellaneous petitions, as Respondents in the Writ Petition. The Petitioners can be impleaded only if they are
necessary for the adjudication of the lis before this Court, as held in 2010 (7) SCC 417, Mumbai International Airport(P) Ltd v. Regency
Convention Centre & Hotels (P) Ltd.
The learned Counsel appearing for the Petitioner in the impleading petition, in M.P. (MD). No. 3 of 2010, in W.P. (MD). No. 13055 of 2010,
had submitted that from the preamble of the Tamil Nadu Temple Entry Authorization Act, 1947. It could be seen that the said Act has been
enacted for the purpose of authorizing the entry of all classes of persons into Hindu Temples in the State of Tamil Nadu and for their offerings of
worship therein. The claims made by the Petitioner in the above Writ Petitions are contrary to the policy of the State Government. It had also been
submitted that customs and usages, which are contrary to the laws in force in India, would be void, as per the provisions enshrined in Article 13 of
the Constitution of India. There is an obligation on the State to protect human rights, including human dignity, as per Article 21 of the Constitution
of India.
The learned Counsel had placed reliance upon the decision in N. Adithayan v. Travancore Devaswom Board and others, 2003-1-L.W.97, in
support of his contentions. In the said decisions, it has been held as follows:
As observed by this Court in Kailash Sonkar v. Maya Devi in view of the categorical revelations made in the Gita and the dream of the Father
of the Nation Mahatma Gandhi that all distinctions based on caste and creed must be abolished and man must be known and recognized by his
actions, irrespective of the caste to which he may on account of his birth belong, a positive step has been taken to achieve this in the Constitution
and, in our view, the message conveyed thereby got engrafted in the form of Articles 14 to 17 and 21 of the Constitution of India, and paved the
way for the enactment of the Protection of Civil Rights Act, 1955.
It is now well settled that Article 25 secures to every person, subject of course to public order, health and morality and other provisions of Part
III, including Article 17 freedom to entertain and exhibit by outward acts as well as propagate and disseminate such religious belief according to his
judgment and conscience for the edification of others. The right of the State to impose such restrictions as are desired or found necessary on
grounds of public order, health and morality is inbuilt in Articles 25 and 26 itself. Article 25(2)(b) ensures the right of the State to make a law
providing for social welfare and reform besides throwing open of Hindu religious institutions of a public character to all classes and sections of
Hindus and any such rights of the State or of the communities or classes of society were also considered to need due regulation in the process of
harmonizing the various rights. The vision of the founding fathers of the Constitution to liberate the society from blind and ritualistic adherence to
mere traditional superstitious beliefs sans reason or rational basis has found expression in the form of Article 17. The legal position that the
protection under Articles 25 and 26 extends a guarantee for rituals and observances, ceremonies and modes of worship which are integral parts of
religion and as to what really constitutes an essential part of religion or religious practice has to be decided by the courts with reference to the
doctrine of a particular religion or practices regarded as parts of religion, came to be equally firmly laid down.
Where a temple has been constructed and consecrated as per Agamas, it is considered necessary to perform the daily rituals, poojas and
recitations as required to maintain the sanctity of the idol and it is not that in respect of any and every temple any such uniform rigor of rituals cane
sought to be enforced, dehorns its origin, the manner of construction or method of consecration. No doubt only a qualified person well versed and
properly trained for the purpose alone can perform poojas in the temple since he has not only to enter into the sanctum sanctorum but also touch
the idol installed therein. It therefore goes without saying that what is required and expected of one to perform the rituals and conduct poojas into
know the rituals to be performed and mantras, as necessary, to be recited for the particular deity and the method of worship ordained or fixed
there for. For example, in Saivite temples or Vaishnavite temples, only a person who learnt the necessary rites and mantras conducive to be
performed and recited in the respective temples and appropriate to the worship of the particular deity could be engaged as an Archaka. If
traditionally or conventionally, in any temple, all along a Brahmin alone was conducting poojas or performing the job of Santhikaran, it may not be
because a person other than the Brahmin is prohibited from doing so because he is not a Brahmin, but those others were not in a position and, as a
matter of fact, were prohibited from learning, reciting or mastering Vedic literature, rites or performance of rituals and wearing sacred thread by
getting initiated into the order and thereby acquire the right to perform homa and ritualistic forms of worship in public or private temples.
Consequently, there is no justification to insist that a Brahmin or Malayala Brahmin in this case, alone can perform the rites and rituals in the temple,
as part of the rights and freedom guaranteed under Article 25 of the Constitution and further claim that any deviation would tantamount to violation
of any such guarantee under the Constitution. There can be no claim based upon Article 26 so far as the Temple under our consideration is
concerned. Apart from this principle enunciated above, as long as anyone well versed and properly trained and qualified to perform the pooja in a
manner conducive and appropriate to the worship of the particular deity, is appointed as Santhikaran dehors his pedigree based on caste, no valid
or legally justifiable grievance can be made in a court of law. There has been no proper plea or sufficient proof also in this case of any specific
custom or usage specially created by the founder of the Temple or those who have the exclusive right to administer the affairs -religious or secular
of the Temple in question, leave alone the legality, propriety and validity of the same in the changed legal position brought about by the Constitution
and the law enacted by Parliament. The Temple also does not belong to any denominational category with any specialized form of worship peculiar
to such denomination or to its credit. For the said reason, it becomes, in a sense, even unnecessary to pronounce upon the invalidity of any such
practice being violative of the constitutional mandate contained in Articles 14 to 17 and 21 of the Constitution of India.
He also relied upon a decision in Muthamil Selvam v. A. Manickam (2009) 4 CTC 377, wherein it has been held as follows:
The Courts below, without considering the correct legal position of law, have erroneously decreed the Suit. In view of the discussions made
earlier, it is very clear that the concurrent judgments passed by the Courts below are totally against law and the same are liable to be reversed and
further all the substantial questions of law raised on the side of the Appellants/Defendants are decided in their favor.
It had been further submitted that the Petitioner had not replied to the show cause notice issued by the second Respondent. He had only issued
a lawyer''s notice, which cannot be taken to be a proper explanation. Further, it has also been stated that the resolution passed by the Board of
Trustees of the temple, in Resolution No. 107, on 27.09.2010, holding that the carrying of persons in Palanquins in the temple premises, would
amount to infringement of the human dignity of those who are carrying the Palanquins. Therefore, it had been resolved to stop such practices.
Further, it had also been pointed out that a resolution, dated 23.10.2010, had been passed by the Tamil Nadu Association of Temple Employees
condemning the said practice. It had also been submitted that the Petitioner could invoke Section 21 of the Tamil Nadu Hindu Religious and
Charitable Endowments Act,1959, to establish his rights. As such, the Writ Petition filed by the Petitioner is devoid of merits and therefore, it is
liable to be dismissed.
Mr. K.M. Vijayakumar, learned Special Government Pleader appearing on behalf of the first Respondent had submitted that the Writ Petition
is not maintainable, as it would be open to the Petitioner to establish his rights and privileges, before the appropriate authority, u/s 63(e) of the
Tamil Nadu Hindu Religious and Charitable Endowments Act,1959, especially, when there is a dispute pending on the file of the District Munsif
Court, Trichy, in the Civil Suit, in O.S. No. 840 of 2006 amongst the members of the families of Shri. Vedavyasa Bhattar Thiruvamsam. He had
also made similar submissions as that of the learned Counsel appearing on behalf of the second Respondent in the Writ Petition.
In view of the submissions made by the learned Counsels appearing on behalf of the parties concerned and in view of the records available and
in view of the decisions cited supra, it is seen that the main claim of the Petitioner is that the Respondents in the Writ Petitions and others claiming
through them should be restrained from interfering with the rights and privileges due to the Petitioner in performing his turn of service of chanting the
Vedas and in receiving the honors of Brahmaratham, during the ''Kaisika Ekadasi'' festival, being held at Arulmighu Sree Ranganathar temple, at
Srirrangam, Trichy.
The main contention raised on behalf of the Petitioner is that the rights, privileges and honors which are due to the Petitioner have been in
practice for a long number of years. Thus, they had attained the status of an established custom and usage and therefore, they cannot be curtailed,
either by the Respondents, or by the other persons, as they are protected under the provisions of Section 105 of the Tamil Nadu Hindu Religious
and Charitable Endowments Act, 1959. It had also been claimed that the Commissioner and the other Officers of the Tamil Nadu Hindu Religious
and Charitable Endowments Department have an obligation, u/s 25 of the said Act to observe forms and ceremonies appropriate to the religious
institution concerned. As such, the second Respondent has no authority or jurisdiction to alter or to curtail the practice of the Petitioner being
carried in a Palanquin, in the temple premises, as part of the Brahmaratham ceremonies. In spite of such contentions being raised this Court is not
inclined to go into the factual aspects relating to the existence of such customs and usages, as claimed by the Petitioner, in the present Writ Petition.
It is for the Petitioner to establish his claims, before the appropriate civil forum, in the manner known to law. It is not in dispute that a Civil suit, in
O.S. No. 840 of 2006, relating to the sharing of the privileges and honors, amongst the members of the various branches of Shri. Vedavyasa
Bhattar Thiruvamsam, is pending on the file of the District Munsif Court, Trichy. While so, it would not be appropriate for the Petitioner to claim
that he should be permitted to be carried in a Palanquin in the temple premises stating that it is his turn to enjoy such a privilege. Further, the
question whether the carrying of persons belonging to the three families of Shri. Vedavyasa Battar Thiruvamsam, in a Palanquin, in the temple
premises, is in violation of certain human rights and whether such a custom or usage has been in existence for a long time are issues which could be
decided before an appropriate forum, as per the relevant provisions of law. Further, it is not in dispute that certain rights privileges and honors are
being enjoyed by the Petitioner and the other members of Shri. Vedavyasa Bhattar Thiruvamsam, at Arulmighu Sree Ranganathar temple, at
Srirrangam, Trichy. In fact, the second Respondent had stated that the Petitioner would be entitled to all the privileges and honors due to the
Petitioner, which would be rendered in his favor, except the practice of carrying him in a Palanquin, in the premises of the temple, during the
Vaikunta Ekadasi festival, which is being celebrated at the Arulmighu Sree Ranganathar temple, at Srirrangam, Trichy.
From the facts and circumstances of the case, it is clear that it is for the Petitioner to establish his claims relating to the customs and usages and
also with regard to the rights, privileges and honors, said to be enjoyed by him, before the appropriate authority, u/s 63(e) of the Tamil Nadu
Hindu Religious and Charitable Endowments Act, 1959. Even though the learned Counsel for the Petitioner had submitted that the rights, privileges
and honors enjoyed by the Petitioner forms part of the customs and usages, saved u/s 105 of the Act, there is no doubt that such a claim has to be
established by way of evidence, before the appropriate forum, in accordance with the procedures established by law. Even if certain practices
have been followed for a long number of years and even if such practices can be taken to form part of the religious rights, recognized under
Articles 25 and 26 of the Constitution of India, reasonable restrictions can be imposed on such practices by the State, on certain specific grounds.
It is also seen that the members of the other branches of Shri. Vedavyasa Battar Thiruvamsam have not been made as parties to the present
Writ Petition, even though they are necessary parties for the adjudication of the issues arising for the decision of this Court. Even otherwise,
disputed factual issues cannot be gone into by this Court, while exercising its extraordinary jurisdiction, under Article 226 of the Constitution of
India. From the records placed before this Court, by the learned Counsel appearing on behalf of the second Respondent, it is seen that the Board
of Trustees of Arulmighu Sree Ranganathar temple, at Srirrangam, Trichy, had passed a resolution No. 107, on 27.09.2010, giving up the practice
of carrying person in a Palanquin, in the temple premises. The said resolution has not been challenged, till date. Further, it is also noted that the
Tamil Nadu Association of Temple Employees had also passed a resolution, on 23.10.2010, stating that they would not take part in the practice of
carrying persons in Palanquins in the temple premises.
In such circumstances, this Court is of the considered view that the Petitioner has not shown sufficient cause or reason to grant the relief''s, as
prayed for by the Petitioners, in the present Writ Petitions. Hence, the Writ Petition, in W.P (MD). No. 13055 of 2010, stands dismissed. No
costs. Consequently, the connected miscellaneous petitions, in M.P. (MD). Nos. 1 to 4 of 2010, are also dismissed.
With regard to the impleading petitions, in M.P. (MD). Nos. 2 to 4 of 2010, in W.P (MD). No. 13055 of 2010, this Court is of the
considered view that by allowing the impleading petitions the scope and ambit of the subject matter in the Writ Petition would be unnecessarily
enlarged. It had also been found that there is no necessity to implead the Petitioners, as parties to the Writ Petition, for the purpose of deciding the
issues, which had arisen for consideration of this Court, in the present Writ Petition. Therefore, while dismissing the Writ Petition, the connected
miscellaneous petitions are also dismissed. No costs. However, it goes without saying that it would be open to the Petitioner, in the Writ Petition, in
W.P. (MD). No. 13055 of 2010, to establish his claims before the appropriate authority or forum, in the manner known to law.
Further, it is found that the reliefs sought for by the Petitioner in the Writ Petition, in W.P. (MD). No. 14229 of 2009, has already become
infructuous. Hence, the same is dismissed as infructuous. Consequently, the connected miscellaneous petition is closed. No costs.