Sri Panduranganathaswami Devasthanam, Salem and Others vs The Dy. Commissioner, Hindu Religious and Charitable Endowments, Coimbatore

Swamikkannu, J.—Sri Panduranganathaswami Devasthanam, Shevapet, Salem by its trustees has come forward with this petition under

Article 226 of the Constitution of India for issuing a Writ of Mandamus or any other appropriate writ order or directing the responent viz., the

Deputy Commissioner, Hindu Religious and Charitable Endowments, Coimbatore, to forbear from taking any proceedings to appoint to the

petitioner temple any trustees pursuant to his notice No. 18576/78, dt. 31-8-1979. It is inter alia stated in the affidavit sworn to by one of the

trustees of the petitioner temple that the petitioner temple was founded and has been managed by the members of the Sourashtra Brahmin

Community of Shevapet, Salem, and that it has been declared as a ""Denominational Temple"" belonging to the said Community in O. S. No. 429 of

1968 on the file of the Sub-Court, Salem, to which the Commissioner for Hindu Religious and Charitable Endowments of Tamil Nadu was the

defendant, the respondent/the Deputy Commissioner for Hindu Religious and. Charitable Endowments, Coimbatore previously for Salem and

Dharmapuri Districts, had published a notice No. 2109 of 1978, dt. 28-2-1978, inviting applications for the appointment of trustees to the

petitioner temple. On behalf of the trustees the deponent objected to the notice in his letter to him dt. 10-3-1978, enclosing a copy of the decree in

the above suit But the respondent/the Deputy Commissioner for Hindu Religious and Charitable Endowments, had been still persisting in his

proposal to appoint trustees and has again published a notice No. 18576/78, dt. 31-8-1979, but this time restricting the applicants to the members

of the Sourashtra Brahmin Community of Shevapet, Salem, the appointment of trustees to the petitioner temple is by election from among the

members of the said community residing at Shevapet, Salem, and that the respondent has no power nor jurisdiction to appoint trustees even though

from among the members of the said community. The respondent''s proposed action amounts to interference with the management of the petitioner

temple by the members of the said community and is contrary to the guarantee made in Article 26 of the Constitution of India and in Section 107 of

the Tamil Nadu Hindu Religious and Charitable Endowments Act 22 of 1959. The said proposal of the respondent has to be restrained and as

there is no other remedy in that behalf the petitioner is constrained to invoke the jurisdiction of this Court under Article 226 of the Constitution of

India. If the respondent is allowed to proceed with the proposed appointment, it will lead to confusion, the administration of the petitioner temple

will come to a stand still and the temple will thereby be put to irreparale loss.

In the counter filed on behalf of the respondent/the Deputy Commissioner for Hindu Religious and Charitable Endowments, Coimbatore, has

inter alia contended that the notice in R.C. No. 18576/78, dt. 31-8-1979 was published calling applications for appointment of trustees from

Sourashtra Brahmin residents at Shevapet in Salem on the basis of the decree granted in O.S. No. 429 of 1968 on the file of the Sub-Court,

Salem. The Court has granted the decree in O. S. No. 429 of 1968 that the above suit institution belongs to the Sourashtra Brahmine residing in

Shevapet, Salem. In these circumstances the Department has taken all statutory steps for appointment of trustees. Therefore, the notice published

in Rc. No. 18576/78 dt. 31-8-1979 calling for applications for appointment of trustees from Sowrashtra Brahmins residing at Shevapet in Salem,

is legal and lawful one. The Sub-Court, Salem, granted a decree in O. S. No. 429 of 1968 that the suit institution belongs to the Sourashtra

Brahmin residents at Shevapet in Salem. This writ petition is against the provisions of the Tamil Nadu Hindu Religious and Charitable Endowments

Act, 1959 (Tamil Nadu Act 22 of 1959) and the petitioner has no exhausted the remedy available u/s 64 of the Act 22 of 1959. But the Lower

Court has not, however, granted any injunction against the Department. So the supervisory powers of the Department under the provisions of the

Act 22 of 1959, are not affected. In this stage, the Department has not rights to appoint trustees to the suit institution even from the said

Community as the petitioner has not established his right under the provisions of the Act 22 of 1959. The petitioners have no right to continue in

management of the suit institution as trustees. The petitioners are not entitled to file this petition in a representative capacity on behalf of the

Sourashtra Brahmin residents at Shevapet in Salem and are not entitled to the relief sought for in this petition.

Mr. O.V. Balaswami, learned counsel for the petitioner, brought to the notice of this Court the ratio decidendi in the decision reported in

Muthilhasari v. Madasami Asari (1965) 2 MLJ 220 for the proposition that the Area Committee and the Commissioner of Hindu Religious and

Charitable Endowments will have discretion to decline to accept the elected candidates who suffer from any specific unsuitability or infirmity

unfitting them from office. In that case, election may have to be held again in that particular respect. But subject to this restriction, it is the corporate

body that has to elect trustees for the administration and management of the temple and its properties. Such arrangement may be carried out by the

authorities under the directions of the Commissioner after the proper interval of time; in the meantime, the interim; arrangements will continue to be

enforced Referring to the above ratio of the decision in which the decisions reported in The Commissioner, Hindu Religious Endowments, Madras

Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt., ; Ratilal Panachand Gandhi Vs. The State of Bombay and Others, ; Devaraja Shenoy

and Others Vs. State of Madras and Another, ; The Durgah Committee, Ajmer and Another Vs. Syed Hussain Ali and Others, and Mukundaraya

v. State of Mysore were referred to, it has been contended that the ratio in these decisions has been completely ignored by the respondent herein

in spite of the fact that the Commissioner had issued circular to the effect that the ratio of the decision reported in Muthia Asari v. Madasami Asari

(1965) 2 MLJ 220 has had the authority with respect to the denominational temple. The Department has got the supervisory power of the activities

that are done by the members of the community through their elected trustees. So far as the administration of the temple is concerned, it does not

mean the Deputy Commissioner himself can directly call the applications for appointment of trustees and take on himself the duties that are wholly

vested with the members of the community through their representatives. It is this aspect which is very much stressed by Mr. O.V. Balaswami by

citing the decision reported in

R. China Boyan and Others Vs. The Commissioner for Hindu Religious and Charitable Endowments and Another, . He has also submitted that the

mention of Section 64 in the counter-affidavit is wrong because the said section deals only with the power of the Deputy Commissioner to settle

schemes, but perhaps by mistake instead of putting Section 63 of the Tamil Nadu Act 22 of 1959 the deponent had put Section 64. I think there is

substance in this submission because Section 63 deals with the decision of the matter relating to certain disputes and matters by the Deputy

Commissioner. Here there is no dispute in this respect, but it is relevant to note that Mr. P. Samuel, learned Government Pleader, has taken me

through the provisions of Article 26 of the Constitution of India as well as Section 107 of the Tamil Nadu Act 22 of 1959. The one and the only

point for consideration is whether the notice which is now sought to be quashed emanated from the office of the Deputy Commissioner calling for

the applications for appointment of trustees is within his power and whether his attutide amounts to ignoring the time and again circular issued by

the Commissioner of the Hindu Religious and Charitable Endowments as well as ignoring the ratio of the decisions reported in R. China Boyan and

Others Vs. The Commissioner for Hindu Religious and Charitable Endowments and Another, and Muthiah Asari v. Madasami Asari (1965) 2 M

LJ 220. A careful reading of both the decisions and the affidavit sworn to in support of the petition as well as the counter that had been filed by the

respondent herein shows that the respondent herein has exceeded his jurisdiction by calling for the applications for the appointment of trustees to

the denominational temple which is not contemplated anywhere in the provisions of the Tamil Nadu Act 22 of 1959 or anywhere in the circular

issued from time to time. At the most if there is any irregularity in the procedure adopted by the members of the community for appointment of a

trustee or that the appointment of trustees suffers from any disqualification, then the Deputy Commissioner can call for any explanation or take

action as per the provisions of Section 63. In fact what was laid down in the decision reported in Muthiah Asari v. Madasami Asari (1965) 2 MLJ

220 is as follows :-

With regard to the actual facts, there has been some difficulty, and it appears to us that some degree of vagueness and confusion is evident, in the

record. However, when arguments were submitted before us by the learned cousnel for the appellant and the learned Government Pleader, it

become fairly clear that the main conclusion of fact could not be disturbed in Second Appeal, and that it is specific in character. We do not think it

is necessary to set forth here the decisions of the Supreme Court to the effect that this Court, in exercise of its jurisdiction with regard to Second

Appeals, will really have no power to interfere with an explicit finding of fact based on the appreciation of evidence; that is even if this court might

have felt on inclined to arrive at a different conclusion the merits, on an independent appreciation of the b2 evidence; in other words, even if this

court were of the view that the finding of fact was erroneous. In certain decision, the matter has even been expressed in the acute form that this

Court would have no jurisdiction, in Second Apeal, to interfere with a finding of fact, pure and simple, though deemed to be erroneous. We think it

is sufficient, here, to set forth the main finding of fact in this suit in the very words of the First Appellate Court. Those passages are as follows : --

Thus the exclusive right of the five village people has not been established and the right of the Viswa Karma Brahmin community of the district has

not been negatived even by the trial court as there is no evidence at all to that effect.

Again

All the members of the Viswa Karma Brahmin community are entitled to have an interest in the suit institution.

Thus, we may take it as established on the evidence, that this religious institution, though indisputably denominational in character, does not belong

merely to the Viswa Karma Brahmin Community members of certain villages, or of five named villages, but to the members of that community in

the district as a whole. Undoubtedly, it is this corporate body which will have the right to manage the temple and to administer the endowments,

presumably through the elected trustees; undoubtedly, the rights of this body will be entitled to protection under Article 26 of the Constitution,

particularly Sub-clause (d). The right of any corporate body, with regard to a denominational religious institution, to have its functions preserved

from invasion, under Article 26 of the Constitution, has been statutorily embodied in Section 107 of Madras Act XXII of 1959.

It is really not necessary for the present restricted purpose, to deal with the case law at any great length. The learned Judge himself referred to the

following decisions as relevant. The Commissioner, Hindu Religious Endowments, Madras Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur

Mutt., , Ratilal Panachand Gandhi Vs. The State of Bombay and Others, and Devaraja Shenoy and Others Vs. State of Madras and Another, . In

addition our attention has been drawn to two decisions of importance upon the actual principle, one of which is The Durgah Committee, Ajmer and

Another Vs. Syed Hussain Ali and Others, and the other is Mukundaraya v. Slate of Mysore AIR 1960 Mys 18 a Bench decision. Actually the

last decision deals with the precise point whether with regard to a denominational temple which belongs to a corporate body like the members of a

defined community, the State would be within its powers in applying a provision like Section 41 of the Madras Hindu Religious and Charitable

Endowments Act, 1951, corresponding to Section 49 of Act XXII of 1959 and thereby enabling the Area Committee, an external body, to

nominate trustees to the mangement of such denominational religious institution, or for the administration of its properties.

We might very briefly state that, in the present case, we are not deciding the wider question whether Section 49 is ultra vires the powers of the

Legislature, if sought to be applied to denominational temples or religious institutions, in the light of Article 26(d) of the Constitution. It is sufficient

for us to observe that both in the Mysore decisions that we have earlier referred to, and in The Durgah Committee, Ajmer and Another Vs. Syed

Hussain Ali and Others, the relevant criterion has been expressed in explicit language. In the Mysore case, the Bench observed that if the effect of

certain provisions was to totally take away the right of administration from the hands of the religious denomination and to vest such right in other

authorities, this would be a violation of rights guaranteed under Article 26 of the Constitution. In the Supreme Court decision it is stated : --

If the right of a denomination or a section of such denomination is adversely affected by the statute, the relevant provision of the statute must be

struck down as a whole and in its entirety or not at all..... In other words, the infirmity or the vice in the statute cannot be cured by confining the

members of the proposed Committee to the denomination itself.

We think it is sufficient to point out the position at law for the facts of the present case make it abundantly clear that there is no need, in the

immediate context, to strike down any provision of law in the 1959 Act as ultra vires in view of rights guaranteed under Article 26 of the

Constitution. Certainly, the fact that the Area Committee purported to nominate members of the particular religious denominations will not be

enough to cure the vice or infirmity, if otherwise the rights guaranteed to this body under Article 26(d) are effectively taken away by the

nomination. But the matter seems to be academic at the moment, since the terms of the members who were previously functioning as trustees, we

shall assume as de facto trustees, have come to an end The temple, we must reiterate, belongs to the entire body of the Viswa Karma Brahmin

community of the district, and not merely to members of the five named villages or certain villages. The interim powers of the Commisioner or the

Area Committee to make arrangements for the day-to-day administration of the temple and its endowments are not in dispute. Hence, we direct

that such arrangements be made, as appear feasible and expedient. In the meantime, it is obvious that an electoral roll has to be prepared of the

members of the community in the district,

which form a corporate body in whom are vested relevant rights under Article 26 of the Constitution. If such a roll is prepared, some kind of an

electoral meeting has to be convened, or an electoral college has to be formed and two or three trustees, as convenient, will have to be elected by

the electorate. Certainly, the Area Committee and the Commissioner will have discretion to decline to accept the elected candidates who suffer

from any specific unsuitability or infirmity unfitting them from office; in that case, election may have to be held again in that particular respect. But

subject to this restriction, it is the corporate body that has to elect trustees for the administration and management of the temple and its properties.

Such arrangement may be carried out by the authorities under the direction of the Commissioner (first defendant) after the proper interval of time;

in the meantime, the interim arrangements will continue to be enforced.

Section 107 of the Tamil Nadu Act 22 of 1959 reads as follows : --

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"".

Article 26 of the Constitution of India reads as follows :--

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 or religion;

(c) to own and acquire movable and immovable property; and

(d) to administer such property in accordance with law.

In support of his contention that there is nothing wrong the Deputy Commissioner himself issued notice calling applications for appointment of

trustees, the learned counsel for the respondent also brought to the notice of this Court the observation of the Revered President of India Dr.

Radhakrishnan at page 129 of the book ""Speeches and Writings"",

pubished by the Publications Division, Ministry of Information and Broadcasting, Government of India (Second Series) which reads as follows:

The other lesson which Nanak taught us is the common ground which subsists between many of our religions. In his time he was faced by

antagonism of Hindus and Muslims and he said, why are you quarrelling about forms, about ceremonies, about dogmas, about sacred places, etc.,

Like this you will find that everyone is worshipping the same Supreme; we are all trying to find out where God is and how we can reach him. That

is the lesson which he taught us. There is a common ground between the religions of the world. In his time, Nanak took up Hindus and Muslims

and he taught them that the Quaran and the Puranas teach the same thing; whether it is a mosque or a temple, we see the same God. Nanaks''s

rebuke we still deserve because we are still leading superficial lives. We are not truly religious; we are not caught into the depths of our

consciousness and do not realize the Supreme who is there. The same Supreme dwells in every human being and if we are quarrelling among

ourselves we are crucifying the Lord. The Lord is crucified and his body is torn to pieces. It is necessary for us to understand in this age of mingling

of cultures, of religions, etc., that there is a common substratum from which all religions spring. They are the varied expressions of the one and the

same Reality. So, there is a spiritual dimension. That sanctity is not withdrawal from the world, that all religions preach the same gospel, and those

who are quarrelling about them are not truly religious, these are some of the lessons which Nanak taught us.

Article 26 of the Constitution of India guarantees certain rights to every religious denomination, subject to ''public order, morality and health''

and the rights are capable of being enforced by or on behalf of a denomination. This aspect has been considered in the decision reported in

Devaraja Shenoy and Others Vs. State of Madras and Another, . The word ''denomination'' has been defined 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

was so held in The Commissioner, Hindu Religious Endowments, Madras Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt., . Article 26 of

the Constitution of India contemplates not only a religious denomination but also a section thereof; Hence, a Math is religious denomination within

the meaning of Article 26. Similar is the Gowda Saraswat Brahmin Community; followers of the Zoroastrian religion; but not the Aurobindo

Society or Auroville. It was so held in Mittal v. Union of India, : [1983]1SCR729 . Clause (b) of Article 26 deals with the right to manage its own

affaris in matters of religion. This clause guarantees to each religious denomination the right to manage its domestic affairs in matters which are

concerned with religion and the State cannot interfere in these affairs unless the denomination so exercises its right as to interfere with ''Public

order, morality or health''. Another limitation upon the right under Article 26(b) is that it is subject to Articles 17 and 25(2)(b). It was so held in

Sardar Syedna Taher Saifuddin Saheb Vs. The State of Bombay, and Sri Venkataramana Devaru and Others Vs. The State of Mysore and

Others, . Besides these, there are no other limitations imposed by the Constitution. Hence, a right of religious denomination under Article 26(b) e.g.

to excommunicate a member on religious grounds, cannot be taken away or restricted on the ground that it would affect the civil rights of such

members, including the right of beneficial use or enjoyment of the denominational property. While the right to administer property under Clause(d)

is subject to regulation by law, the right to manage religious affairs under Clause (b) cannot be regulated by the Legislature. It was so held in The

Commissioner, Hindu Religious Endowments, Madras Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt., . The protection of Clause (b) if

Article 26 does not extend to mangement of the property or other secular affairs of the denomination. It was so held in Mittal v. Union of India, :

[1983]1SCR729 . Thus we find as per the decisions in The Commissioner, Hindu Religious Endowments, Madras Vs. Sri Lakshmindra Thirtha

Swamiar of Sri Shirur Mutt., and Ram Chandra Deb Vs. The State of Orissa, that the right of management includes-

(a) complete autonomy to decide what rites and observances are essential according to its religion, though the secular aspects, e.g., the scale of

expenses to be incurred in connection with such observances, may be regulated by the competent legislature;

(b) the right to spend the trust property or its income for religion and religious purposes and objects indicated by the founder or established by

usage obtaining in a particular institution To divert the trust property or funds to other purposes, although the original objects of the founder can still

be carried out, is an unwarrantable encroachment upon the right guaranteed to a religions institution by this clause, even though such other

purposes are charitable''; and

(c) the right to maintain the institution under the management of the spiritual head of the denomination, which would be destroyed if a statutory

authority is appointed for the purpose.

""Religion"", in this context, is not confined to religious belief but includes the practices which are regarded by the community as part of its religion

and may extend even to matters of food and dress. Each religious denomination or organisation 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. But the Court has the right to determine

whether a particular rite or observance is regarded as essential by the tenets of a particular religion.

In the instant case before us the point stressed is that the right to select or elect or appoint a person of the community as trustee to the petitioner

temple vests exclusively with the members of the Sourashjra Brahmin

Community of Shevapet, Salem, and not with the Deputy Commissioner, Salem. This contention has to be upheld in view of the decisions referred

to above with respect to the interpretation of Article 26 of the Constitution of India which is more or less embodied in Section 107 of the Tamil

Nadu Act 22 of 1959. In this view a careful scrutiny of the averment in the affidavit sworn to and accompanying this petition and the contentions

raised in the counter sworn to by the Deputy Commissioner, Coimbatore, disclose that the right of the petitioner in appointing the trustees to the

temple has to be upheld and not the contention of the respondent herein that it is well within the purview of Section 107 and Section 63 of the

Tamil Nadu Act 22 of 1959 that it can call for the applications for the appointment of trustees. Nowhere it is contemplated that such calling is part

and parcel of the duties of the respondent herein especially when it is admitted, that there are circulars which are to the effect that the officers of the

rank of the respondent herein should not be incharge of calling for applications when such a right of calling for applications vesis with the members

of the community and the representatives therefor. Therefore the contention raised on behalf of the petitioner herein by Mr. O.V. Balaswami has to

be upheld viz., that it is only the community has got the right to call for the applications for the appointment of trustees to the petitioner temple and

not the respondent. The supervisory power of the respondent does not extend to the interference with the right vested in the members of the

community which right is one which is well protected by a petition under Article 26 of the Organic Law of the land, namely, the Constitution of

India. Under these circumstances the writ petition is allowed. The notice calling for the applications for the appointment of trustees issued by the

respondent is hereby quashed. Under the circumstances since the respondent herein in spite of the circulars and in spite of the decisions of the

Supreme Court as well as the High Court has indulged in calling for the applications over and beyond the powers vested with him, the petition has

necessarily to be allowed with costs and is hereby allowed with costs.

With respect to the fee the provision of Section 93 of the Tamil Nadu Act 22 of 1959 was brought to the notice of this Court. It is made clear

that the respondent herein not to make good the loss which he is incurring by way of the order of this Court allowing this Writ Petition with costs,

by invoking the provisions of Section 93 of the Tamil Nadu Act 22 of 1959. In the result the Writ Petition is allowed with costs. Advocate''s fee is

fixed at Rs. 500/- (Rupees five hundred only).