Madrasdate High Court · 2009

Writ appeals filed against the order passed in W.P.No.13122 of 1994dated 12-09-2005 on the file of this Court. filed under Article 226of Constitution of India to issue a writ of Declaration, declaringthat the amendment Act 30 of 1994 HR&CE is ultra vires of theConstitution of India.For appellants in :: Mr. S. Ramasami, Addl. Adv. GeneralW.A.117/06 and for for Mr. T. Chandrasekaran for HR&CE R2 &R3 in WA.2146/05 For appellant in W.A.2146/05 :: Mr.K.Chandrasekaran, For respondents ::For R1 in both :: Mr. A.L. Somayaji, Senior CounselAppeals for Mr. R. Subramaniam & Mr. SudhakarFor R2 in :: Mr. R. Krishnamoorthy,Senior CounselW.A.117/2006 for Mr. V. Ayyaduri R3-died, R4- No appearanceJUDGMENT(PRABHA SRIDEVAN,J.)The Government amended the Tamil Nadu Hindu Religious andCharitable Endowments (Amendment) Act 1959 (H.R. & C.E. Act in short)by adding clause (aaa) to Section 26 by Act 30/84 with effect from13-05-1984, disqualifying a person from being appointed as or frombeing a trustee of any religious institution if he is not a citizenof India. This clause was challenged by the writ petitioner withsuccess and therefore, the State has filed this appeal.2.The facts are as follows:On 03-04-1923, the Division Bench of this Court in A.S.Nos.121and 122 of 1919 framed a scheme for administration of the Temple ofArulmighu Vedaranyaswamy Devasthanam. Clause 3 of the said decreevested the trusteeship of the Temple with Varani Adheenam consistingof a group of persons residing in Karanavai in the District ofJaffna, Ceylon as it was then called. Clause 5 of the decree veststhe administration of the Devasthanam and all its affairs on theManaging Trustee appointed by the Varani Adheenam from amongthemselves. On 29-05-1956, the Deputy Commissioner, H.R. & C.E.initiated proceedings for framing the scheme. On 07-07-1957, thedraft scheme was settled and its properties were vested in thehereditary trustee. There was objection to the appointment of thenon-hereditary trustee. It was dropped and the hereditary trustee wasalso given the power to choose the Executive Officer. On 06-04-1963,the scheme dated 07-07-1957 was modified in O.A.No.60 of 1960. Theadministration continued to be with the hereditary trustee and thepower to select Executive Officer was also preserved. On 01-02-1996,the Kadirkama Pandara Sannithi who was elected by the Varani Atheenamwas recognized as Trustee. The incumbent died on 22.4.1987. On 11-08-1987 by G.O.Ms.No.915 a fit person was temporarily appointed tilla new trustee is nominated by the Varani Adheenam. On 24-08-1987, https://hcservices.ecourts.gov.in/hcservices/ the Varani Adheenam addressed a letter intimating that he hadnominated K. Seventhinatha Pandarasannithi as the Trustee. On 23-12-1987, the Deputy Commissioner, HR & CE recognised the abovenomination. The appeal, A.P.No.1 of 1988 filed by one KumaraswamiPandara Sannithi challenging the appointment of SeventhinathaPandarasannithi as hereditary trustee was allowed on 18-07-1988 andthe matter was remitted to the Deputy Commissioner. On 17-03-1999,the Deputy Commissioner appointed the first respondent as a fitperson. On 30-10-1989, the Commissioner, HR&CE by a suomotu revisionin 66/89 set aside the order of appointment of the respondent as afit person. Against this a revision was filed under Section 114which was also dismissed on 31-12-1990. Challenging this,W.P.No.2801 of 1991 was filed. The writ petition was dismissed andthe learned Single Judge held that this was a fit case where thepetitioner had to approach a Civil Court for a decision as to who hasbeen validly elected. On 25-04-1991, the first respondent filedO.S.No.190 of 1991 seeking a declaration that he is a properlyelected trustee. The rival claimant submitted to the decree. Thesuit was decreed. On 15-10-1991, the request of the first respondentfor being recognised as a Managing Trustee was rejected by the DeputyCommisisoner. The first respondent thereupon filed R.P.No.39 of 1991before the HR & CE which was dismissed. On 28-10-1992, VaraniAdheenam again appointed the first respondent as Managing Trustee. On31-12-1993, the amendment came into force which disqualified thefirst respondent from being a trustee since he is not a citizen ofIndia. The learned Single Judge allowed the writ petition on theground of discrimination. Aggrieved by the same, the writ appealsare filed both by the State and the third respondent. 3.Mr. A.L. Somayaji, learned Senior Counsel appearing for thefirst respondent who is the writ petitioner submitted that theamendment is ultravires the Constitution. He referred to Entry 17 ofthe Union List viz., "citizenship, nationalisation and aliens" andsubmitted that the amendment squarely affects the rights of an aliennamely the first respondent. Therefore, the State cannot legislateon a subject which is covered by Entry 17 List I. He submitted thatthe scope of Entry 17 should be given full play and cannot berestricted in its operation. The learned Senior counsel submittedthat the amendment cannot be justified on the ground that theamendment falls within Entry 28 List III deals with "charities,charitable institutions, religious endowments and religiousinstitutions". The learned Senior Counsel submitted that it is notnecessary to invoke the Doctrine of pith and substance since thematter wholly falls within Entry 17. It is also submitted that analien is entitled to equal protection under law and the Amending Act30/94 is arbitrary and negates equality. He also submitted that theright to hold office is 'property'. As per the Scheme decree, thehereditary trusteeship devolved on the respondent and therefore theimpugned provision is violative of Article 300A. It was submittedthat the amendment which prohibits foreigner or alien from being orbeing appointed as a trustee is an unreasonable classification andthere is no nexus with the object that is sought to be achieved bythe amendment. The learned Senior Counsel also submitted that in noother State in India is there such a provision and therefore, thiswould result in unfair treatment between an alien in the State ofTamil Nadu and an alien for instance, in the State of Karnataka orAndhra Pradesh. The learned Senior Counsel referred to Article 256and 254 of the Constitution of India. The learned counsel submitted https://hcservices.ecourts.gov.in/hcservices/ that the fact that the assent of the President has been obtainedcannot cure the unconstitutionality. He relied on the followingjudgments:(i) AIR 1954 SC 282(The Commissioner, HR & CE Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt)(ii) AIR 1970 SC 228(Indu Bhushan Bose Vs. Rama Sundari Debi and Anr.)(iii) AIR 1963 SC 703(Gujarat University Vs. Shri Krishna Ranganath Mudhokar)(iv) AIR 1972 SC 1061(Union of India Vs. Harbhajan Singh Dhillon)(v) AIR 1976 SC 1031(The Kerala State Electricity Board Vs. Indian Aluminium Co.Ltd.,)(vi) AIR 2002 SC 3404 (Kaiser-I-Hindi Pvt. Ltd. Vs. National Textile Corporation Ltd.)(vii) AIR 1983 SC 1019(Hoechst Pharmaceuticals Ltd. and Ors Vs. State of Bihar andOrs.)(viii) 2004 (10) SC 201 (State of W.B. Vs. Kesoram Industries Ltd.)(ix) AIR 1973 SC 231(The Bar Council of Uttar Pradesh Vs. The State of U.P.)4.Mr. S. Ramasamy, learned Additional Advocate Generalsubmitted that the amendment does not in any trespass into the fieldoccupied by Entry 17 and the amendment cannot be termed as usurpationof Union's power. Foreigners Act dealt with Centre's power withregard to foreigners. The State was competent to make laws inrespect of all matters connected with "religious institution" and ifin that context, the State felt Citizenship should be a qualificationfor trustee, the same cannot be termed unconstitutional orencroachment into the field occupied by Entry 17. He submitted thatin fact, Karnataka has a similar provision. But even if no otherState had a similar Act, Article 14 of the Constitution will not comeinto play. He relied on,(i) 1989 (3) SCC 634(Federation of Hotel & Restaurant Association of India Vs. Unionof India) (ii) 2004 (2) SCC 553 (Bharat Hydro Power Corpn. Ltd Vs. State ofAssam) https://hcservices.ecourts.gov.in/hcservices/

5.Mr. R. Krishnamoorthy, learned Senior Counsel appearing forthe respondent would submit that there are provisions in many actswhich list citizenship amongst the qualifications to hold the post ornegatively provide that not being a citizen would be adisqualification. He relied on the following judgments:(i) AIR 1979 SC 898 (M. Karunanidhi Vs. Union of India)(ii) 2005 (3) SCC 212 (Govt. of A.P. Vs. J.B. EducationalSociety)(iii) 1998 (7) SCC 26 (Siel Ltd. Vs. Union of India)(iv) 2007 (2) CTC 207 (S. Bagavathy Vs. State of Tamil Nadu)(v) 2003 (9) SCC 358(Welfare Association, A.R.P., Maharashtra Vs. Ranjit P. Gohiland others)(vi) AIR 1997 Madras 366 (DB) (Daivid John Hopkins Vs. The Union of India)(vii) AIR 1954 SC 493( The State of Madhya Pradesh Vs. G.C.Mandawar)6.Mr. K. Chandrasekaran, learned counsel appearing for theappellant in W.A.No.2146 of 2005 also made his submissions and hewould submit that there is no violation of equality if other Statesdo not have similar provision. He relied on the following judgments:(i) AIR 2005 SC 2920 (Sarbananda Sonowal Vs. Union of India)(ii) AIR 1994 SC 1461(State of Arunachal Pradesh Vs. KhudiramChakma)7.We will deal with each of the objections one by one. I. Is Article 14 of the Constitution violated since such acondition is not found in any other State?The chronological narration of events show that the respondent'sclaim to be a hereditary trustee was rejected and it has becomefinal. His appointment as a fit person was set aside. He was sentto Civil Court. There he obtained a decree by consent from hisrival. His claim to be appointed as Managing Trustee was rejected.At this stage, the amendment came. So he was not holding any postwhen amendment was introduced. The objection is that when a foreignercan be a trustee in a Hindu Religious and Charitable Institutions ina State other than the State of Tamil Nadu, he is denied that rightonly in the State of Tamil Nadu. But the learned AdditionalAdvocate General produced a copy of the Karnataka Hindu ReligiousInstitutions and Charitable Endowments Act, 1997, where an identicalprovision is found. Section 21 of the Act which deals withdisqualification of Members reads as follows: https://hcservices.ecourts.gov.in/hcservices/ "A person shall not be qualified for being appointed orcontinued in office as a non-official member on the AdvisoryCommittee, if,--(a) he is not a citizen of India; ..."Therefore, we may straightaway dismiss this ground of discrimination.Even otherwise, this objection cannot be upheld. The ground ofviolation of Article 14 is not available for striking down the law ofone State on the ground that it is, in contrast with the law ofanother State discriminatory. (a) In AIR 1954 SC 493(cited supra), the Supreme Court held,"that it is conceivable that when the same Legislatureenacts two different laws, but in substance, they are forone legislation, it might be open to the Court to disregardthe form and treat them as one law. But, such a course isnot open where the two laws sought to be read in conjunctionare by different Governments and by different legislatures.Article 14 does not authorise the striking down of a law ofone State on the ground that in contrast with a law ofanother State on the same subject its provisions arediscriminatory. Nor does it contemplate a law of the Centreor of the State dealing with similar subjects being held tobe unconstitutional by a process of comparative study of theprovisions of the two enactments. The sources of authorityfor the two statutes being different, Article 14 can have noapplication." Therefore, even if other States do not have a similar provision,on that ground, this Act cannot be quashed. (b) Again, in 1987 (2) SCC 238(Prabhakaran Nair Vs. State ofTamil Nadu), the vires of Section 14(1)(b), 16(2) and incidentally 30(ii) of Tamil Nadu Buildings (Lease and Rent Control) Act wereattacked inter alia on the ground that there was a difference withregard to several statutes namely, Maharashtra, Karnataka, Kerala andWest Bengal where there are provisions for re-induction of thetenants in the premises after reconstruction and that the Tamil NaduBuildings (Lease and Rent Control) Act did not have it. It wasspecifically contended as in this case that the discriminationagainst the tenants in Tamil Nadu is invidious and violates Article14 of the Constitution of India. The Supreme Court held that Article14 of the Constitution does not authorise the striking down of thelaw on the ground that it is different from the law of another Stateon the same subject and the provisions are therefore discriminatory.To arrive at this ratio, the Supreme Court relied on AIR 1954 SC 493(cited supra). Therefore, this ground is rejected.II.The next ground that was raised was that the legislation hasbeen enacted to single out the respondent, who alone is a foreignerholding the position of trustee in the state of Tamil Nadu. The State is empowered to enact legislations for 'administrationof religious institutions" as per Entry 28 List III. It is thus that https://hcservices.ecourts.gov.in/hcservices/ the H.R. & C.E. Act was enacted. Section 26 provides forqualification of a trustee. Several conditions have been prescribed.By the impugned amendment, citizenship has been prescribed as aqualification. The Statement of Objects and Reasons indicate theState's decision to disqualify foreign nationals from holding theposts of trustees. In the counter it is stated that it is for thebetter administration. (a) In 1988 (2) SCC 433 (L.N. Mishra Institute of EconomicDevelopment and Social Change, Patna Vs. State of Bihar), thepetitioner challenged two ordinances, which provided for take over bythe State Government of Private Educational Institutions of the Stateof Bihar and in the Schedule to the Act, only one Institute wasmentioned, namely L.N. Mishra Institute of Economic Development andSocial Change, Patna and it was contended by the petitioner, whoattacked the Act that it did not disclose any basis or principle forsingling out the Institute or by treating it as a class by itself.The Supreme Court referred to AIR 1958 SC 538 (Ram Krishna Dalmia V.Justice S.R. Tendolkar), and in paragraph 11, held in this case that,"...Certain principles of law have been laid down inthat decision. These principles still hold the field andare helpful in considering the constitutionality of astatute. One of these principles is that a law may beconstitutional even though it relates to a singleindividual if, on account of some special circumstances orreasons applicable to him and not applicable to others,that single individual may be treated as a class byhimself."(b) In 1983 (1) SC 51 (S.P. Mittal V. Union of India), aConstitution Bench held, again referring to AIR 1958 SC 538 (citedsupra) that a law may be constitutional even though it relates to asingle individual if, on account of some special circumstances orreasons applicable to him and not applicable to others, that singleindividual may be treated as a class by himself. Paragraph 167 ofthis judgment, there is reference to AIR 1959 Orissa 5(Ram ChandraDeb Vs. State of Orissa) in which Sri Jagannath Temple Act, 1955 waschallenged as being violative of Article 14 of the Constitution inas much as the Legislature had made a separate Act applicable forthat particular temple alone. The Supreme Court quoted from thecase that came up in appeal (reported in AIR 1964 SC 1501(RajaBirakishore Vs. State of Orissa))therefrom and the same runs asfollows:"There is no violation of Article 14 of theConstitution. The Jagannath Temple occupies a uniqueposition in the State of Orissa and is a temple of nationalimportance and no other temple in that State can comparewith it. It stands in a class by itself and consideringthe fact that it attracts pilgrims from all over India inlarge numbers, it could be the subject of specialconsideration by the State Government. A law may beconstitutional even though it related to a singleindividual if on account of special circumstances orreasons applicable to him and not applicable to others,that single individual may be treated as a class byhimself." https://hcservices.ecourts.gov.in/hcservices/ Therefore, the fact that the amendment affects only theVedaranyeswarar Temple or only the respondent cannot be a ground toinvalidate the amendment.III.Next we come to the question relating to Article 254(2) ofthe Constitution and valid Presidential assent. To invoke Article 254(2) of the Constitution there should be aState enactment which is repugnant to an earlier enactment by theParliament on the same matter enumerated in the Concurrent List andthen, the State enactment should have been reserved for considerationby the President and his assent should have been obtained. Thelearned Senior counsel for the respondent – writ petitioner submittedthat the words "reserved for consideration" and the word "assent"should indicate that there should be active application of mind andrelied on AIR 2002 SC 3404 (Kaiser-I-Hind Pvt. Ltd. Vs. NationalTextile Corporation Ltd.) wherein it was held that "reserved forconsideration" is not an idle formality and to find out whether theassent given by the President is restricted or unrestricted, theletter written or the proposal made by the State Government forobtaining assent may be looked into. (a)In AIR 1973 SC 231(The Bar Council of Uttar Pradesh Vs. TheState of U.P.) the Supreme Court held,"15.A contention sought to be raised on behalf of theappellants based on the question of repugnancy can hardly beof any avail. Once it is held that the power to tax waswithin the competence of the State Legislature no questionof repugnancy under Article 254 of the Constitution couldarise. The question of repugnancy can only arise in matterswhere both the Parliament and the State Legislature havelegislative competence to pass laws. In other words when thelegislative power is located in the Concurrent List thequestion of repugnancy arises."(ii)In 2005 (3) SCC 212 (Govt. of A.P. Vs. J.B. EducationalSociety), the Supreme Court held,"9. The Parliament has exclusive power to legislatewith respect to any of the matters enumerated in List I,notwithstanding anything contained in Clauses (2) and (3) ofArticle 246. The non-obstante clause under Article 246(1)indicates the predominance or supremacy of the law made bythe Union legislature in the event of an overlap of the lawmade by Parliament with respect to a matter enumerated inList I and a law made by the State legislature with respectto a matter enumerated in List II of the Seventh Schedule.10. There is no doubt that both Parliament and the Statelegislature are supreme in their respective assigned fields.It is the duty of the Court to interpret the legislationsmade by the Parliament and the State legislature in such amanner as to avoid any conflict. However, if the conflictisunavoidable, and the two enactments are irreconcilable,then by the force of the non-obstinate clause in Clause (1)of Article 246, the Parliamentary legislation would prevailnotwithstanding the exclusive power of the State legislature https://hcservices.ecourts.gov.in/hcservices/ to make a law with respect to a matter enumerated in theState List.11. With respect to matters enumerated in the List III(Concurrent List), both the Parliament and the Statelegislature have equal competence to legislate. Here again,the courts are charged with the duty of interpreting theenactments of Parliament and the State legislature in suchmanner as to avoid a conflict. If the conflict becomesunavoidable, then Article 245 indicates the manner ofresolution of such a conflict.12. Thus, the question of repugnancy between theParliamentary legislation and the State legislation canarise in two ways. First, where the legislations, thoughenacted with respect to matters in their allotted sphere,overlap and conflict. Second, where the two legislations arewith respect to matters in Concurrent List and there is aconflict. In both the situations, Parliamentary legislationwill predominate, in the first, by virtue of the non-obstante clause in Article 246(1), in the second, by reasonof Article 245(1). Clause (2) of Article 245 deals with asituation where the State legislation having been reservedand having obtained President's ascent prevails in thatState; this again is subject to the proviso that theParliament can again bring a legislation to override evensuch State legislation."(iii)In 2004 (2) SCC 553 (Bharat Hydro Power Corpn. Ltd Vs.State of Assam), the Supreme Court held,"The Supreme Court while deciding the constitutionalityof the Bharat Hydro Power Corporation Limited (Acquisitionand Transfer of Undertaking)Act, 1996 observed that wherethe question for determination is whether a particular lawrelates to a particular subject mentioned in one list or theother, the Courts look into the substance of the enactmentand held that there ought to be a presumption in favour ofthe validity of the provision and repugnancy may not be madebased on a mere possibility. " (iv) Various Supreme Court decisions were relied on in thisregard but it is not necessary to refer to all of them, becausebasically what they say is,"(A) Constitution of India, Art.254- Repugnancy betweenlaw made by State and Parliament – When may arise.Repugnancy between a law made by a State and by theParliament may result from the following circumstances:1. Where the provisions of a Central Act and a StateAct in the Concurrent List are fully inconsistent and areabsolutely irreconcilable, the Central Act will prevail andthe State Act will become void in view of the repugnancy.2. Where however a law passed by the State comes intocollision with a law passed by Parliament on an Entry in the https://hcservices.ecourts.gov.in/hcservices/ Concurrent List, the State Act shall prevail to the extentof the repugnancy and the provisions of the Central Actwould become void provided the State Act has been passed inaccordance with Clause (2) of Article 254.3. Where a law passed by the State Legislature whilebeing substantially within the scope of the entries in theState List entrenches upon any of the Entries in the CentralList the constitutionality of the law may be upheld byinvoking the doctrine of pith and substance if on ananalysis of the provisions of the Act it appears that by andlarge the law falls within the four corners of the StateList an entrenchment, if any, is purely incidental orinconsequential.4. Where, however, a law made by the State Legislatureon a subject covered by the Concurrent List is inconsistentwith and repugnant to a previous law made by Parliament,then such a law can be protected by obtaining the assent ofthe President under Article 254(2) of the Constitution. Theresult of obtaining the assent of the President would bethat so far as the State Act is concerned, it will prevailin the State and overrule the provisions of the Central Actin their applicability to the State only. Such a state ofaffairs will exist only until Parliament may at any timemake a law adding to, or amending, varying or repealing thelaw made by the State Legislature under the proviso toArticle 254." (vide AIR 1979 SC 898 (M. Karunanidhi Vs.Union of India))It is not anybody's case that the Act is repugnant to a Centralenactment on the same matter in List III. No Act relating toreligious or charitable institution enacted by the Parliament hasbeen brought to our notice to point out the repugnancy which shouldhave been resolved by obtaining assent from the President. It is nodoubt a fact that the State had obtained assent from the President.But, it is the case of the writ petitioner/respondent that the Act isunconstitutional because it deals with a matter which exclusivelyfalls within the Union List namely Entry 17, and not because thereis inconsistency with a previous Central Act relating to a matterwithin the Concurrent List. We find the answer in AIR 1976 SC 1031(cited supra):"The question of repugnance arises only in case boththe legislations fall within the same List III. There can,therefore, be no question of repugnance between theElectricity Act and the Electricity (Supply) Act on the onehand and the Kerala Act on the other, if the former fall inList I or List III and the latter in List II. If anylegislation is enacted by a State Legislature in respect ofa matter falling within List I that will be withoutjurisdiction and therefore void."So, we do not see why we should go into the questions whether theassent of the President was properly obtained as per Article 254(2).Therefore, these questions whether the President actively assentedand whether the records should be brought need not weigh with us anymore than if necessary. https://hcservices.ecourts.gov.in/hcservices/ So the question whether the President applied his mind beforegiving his assent need not delay us since in this case, Article 254(2) has no role to play.IV.Distinction between Hindu alien and aliens professing otherreligion:The learned Single Judge has also said that if by the amendment,a discrimination is made between a foreigner, who wants to be atrustee in a Hindu Trust and a foreigner, who wants to be in aChristian Trust or a Muslim Trust, we are afraid that this will notreally be a question that falls within Article 14 of theConstitution of India. If the State wants to make a special provisionwith regard to Hindu Religious and Charitable Institutions withoutmaking a similar provision for other Religious Minority Institution,on that ground, no foreigner can complain. The rights of a foreignerunder our Constitution are dealt with in the following cases:(i)AIR 1997 Madras 366 (DB)(cited supra)In this case, a foreigner challenged the constitutionality ofSection 14 of the Citizenship Act which gives the prescribedauthority or the Central Government the discretion to grant or refusethe application under Section 5 or 6 claiming citizenship withoutassigning any reason for such grant or refusal. The Division Benchof our Court dealt in detail with many other cases where foreignnationals had challenged orders passed by this State.In AIR 1991 SC1886 (Louis De Raedt Vs. Union of India) three foreigners challengedthe order of the Union of India which rejected further extension ofthe period of their Stay. Their case was grounded on Article 5 ofthe Constitution of India. The Supreme Court held that thefundamental right of the foreigner is confined to Article 21 for lifeand liberty and does not include the right to reside and settle inthe country as mentioned under Article 19(1)(e). They referred to AIR1955 SC 367 (Hans Muller of Nurenburg Vs. Superintendent, PresidencyJail, Calcutta) where it was held that the power of the Government inIndia to expel foreigners is absolute and unlimited. In 1996 WLR 386(Gilles Preiffer Vs. The Union of India) the French citizen holdingthe French passport applied for extension. He claimed that his rightunder Article 21 and 14 are violated. The learnedJudge held again that the Central Government is vested with theabsolute and unfettered discretion to expel a foreigner without anyformality. (ii)In AIR 1951 SCR 41 (Charan Jith Lal Chowdhary Vs. Union ofIndia) the Supreme Court observed that, "A legislature empowered to make laws on a wide rangeof subjects must of necessity have the power of makingspecial laws to attain particular objects and must, for thatpurpose, posses large powers of distinguishing andclassifying the persons or things to be brought under theoperation of such laws, provided the basis of suchclassification has a just and reasonable relation to theobject which the legislature has in view". https://hcservices.ecourts.gov.in/hcservices/ Therefore, if for administration of the religious institution viz.,the Temple and in the national interest it is necessary to insistupon citizenship and prohibit foreigners from being eligible to be atrustee it is a reasonable classification and well within the powerof the Legislature. Further, as observed by the Supreme Court in thecases cited hereinafter, the words in the entries in the VII Schedulehave to be given its full play. If one of the effects of theamendment resulted in affecting one foreigner viz., the respondentherein, that cannot be a justification for invalidating the entireprovision which really comes within the ambit of Entry 28 of List III.(iii)The rights of the foreigner as enshrined in theConstitution are very limited.If, as is stated in the counter,the State decides that one of the qualifications of a trustee in aHindu Religious and Charitable Institution is possession ofcitizenship for the better administration of the temple since thetemple has financial resources and its own properties and theLegislature makes it as a requirement, we cannot strike down the Actas an encroachment into the field occupied by Entry 17 List I sinceit is essentially an Act for the better administration of the temple.The reasons have been given in the counter that considering thesituation in the country in recent times, it was considered necessarythat a foreigner shall not hold the position of a trustee in a HinduReligious and Charitable Institution. V.Next we come to the crucial objection which is the questionwhether this Act is essentially an Act falling within Entry 17 ListI or Entry 28 List III. (i) We have to see whether the Act primarily affects the rightsof a foreigner or is one which deals with administration of religiousinstitution. In this conext the learned Senior Counsel referred tothe Foreigners' Act.The Foreigners' Act deals with Citizenship and the learned SingleJudge had construed the State Act as though it dealt with therights of foreign national and that the rights of a foreignnational is governed by the provisions of Foreigners' Act. The Actactually deals with the powers of the Central Government in respectof foreigners. (a)The Act is intended to confer upon the Central Governmentcertain powers in respect of foreigners specifically Entry offoreigners into India, their presence and their departure therefrom.Section 3 deals with the power to make rules; Section 3A deals withpower to exempt citizens from Commonwealth countries and otherpersons from application of Act in certain cases; Section 4 dealswith internees; Section 5 deals with change of name; Section 6 dealswith obligations of masters of vessels, etc.; Section 7 deals withObligation of hotel keepers and others to furnish particulars;Section 8 deals with determination of nationality; Section 9 dealswith burden of proof; Section 10 deals with Power to exempt fromapplication of Act; Section 11 deals with Power to give effect toorders, directions, etc. ; Section 12 with Power to delegateauthority; Section 13 deals with Attempts, etc., to contravene theprovisions of this Act, etc. Section 14 deals with Penalties; Section https://hcservices.ecourts.gov.in/hcservices/ 15 deals with Protection to persons acting under this Act; Section 16deals with Application of other laws not barred; Section 17 dealswith Repeals. Therefore, the Act itself deals only with the CentralGovernment powers in respect of foreigners. It does not deal withthe rights of foreigners. (b) Section 3(2)(e)(vii) and (ix) were specifically stressed toshow that this would indicate that the amendment fail squarely withinthe legislative competency of the Parliament under Entry 17 of theUnion List. Section 3(2)(e)(vii) and (ix) read as follows:3. Power to make orders.--(2)..(e)..(vii) prohibiting him from engaging in activities of aprescribed or specified description;...(ix) otherwise regulating his conduct in any suchparticular as may be prescribed or specified;These Sections were repeated by the learned Senior counsel forthe writ petitioner/respondent that the power to prohibit a foreignerfrom becoming a trustee is only with the Union and the StateGovernment cannot legislate it. The Hindu Religious and CharitableEndowments Act is a State Act which is covered by Entry 28 of ListIII. Section 26(1) deals with dis-qualifications of trustees. Thedis-qualifications are as follows:"(1)A person shall be disqualified for beingappointed as, and for being a trustee of any religiousinstitution-(a)if he does not profess the Hindu religion;[(aa) if he is not a citizen of India];(b)except in the case of a hereditary trustee, if heis less than twenty five and more than seventy years ofage;(c)if he is an undischarged insolvent;(d)if he is of unsound mind or is suffering frommental defect or infirmity which would render him unfit toperform the functions and discharge the duties of a trusteeor is suffering from leprosy or any other loathsomedisease;(e)if he is interested in a subsisting lease of anyproperty of, or contract made with or any work being donefor the religious institution or is in arrears of any kinddue by him to such religious institution or endowment;(f)if he is employed as a paid legal practitioner onbehalf of or against the religious institution;[(ff) if he has been removed or dismissed from serviceunder the Central Government or any State Government or any https://hcservices.ecourts.gov.in/hcservices/ local authority];(g)if he has been sentenced by a Criminal Court foran offence involving moral delinquency, such sentence nothaving been reversed or the offence pardoned;(h)if he has acted adverse to the interest of theinstitution."(c) If the State feels that citizenship is a requirement, then byincluding that additional condition as qualification, the Act isstill, in pith and substance, dealing with the administration ofreligious and charitable institution, but incidentally prohibits theforeigner from being a trustee. (ii) In the counter, the respondents have clearly statedthat they insist upon the possession of citizenship as aqualification for the trustee for better and proper administration ofthe Temple and in view of certain developments in the Country. Infact, if the Legislation had worded it positively that only a citizenof India can be a trustee in Hindu Religious and CharitableInstitution, we do not think anyone could have raised any challenge.Instead the wording is negative. There are many cases where one ofthe qualifications is citizenship or rather, the person who is not acitizen is disqualified from occupying the post. e.g. In Tamil NaduState and Subordinate Services Rules, Rule 12(c) reads thus:"(c) A candidate for appointment to a post under the State mustbe, (a) a citizen of India, or ... (b)..... "The words used in Entry 28 of List III are "religious andcharitable institutions". Therefore, all matters relating toadministration of the religious and charitable institution must beunderstood to have been covered by the Entry. Repeatedly the SupremeCourt has held that the words used in the Entries in VII Scheduleshould be given the widest meaning.(iii) In State of Gujarat V. Akhil Gujarat Pravasi V.S.Mahamandal (cited supra), the Supreme Court held that in interpretingthe scope of various entries in the legislative lists in the SeventhSchedule, the widest-possible amplitude must be given to the wordsused and each general word must be held to extend to ancillary orsubsidiary matters which can fairly be said to be comprehended in it.The Entries should, thus be given a broad and comprehensiveinterpretation. (iv) In AIR 1970 SC 228(cited supra), the Supreme Court held,"It is, in the alternative, contended that, even if theexpression "regulation of house accommodation" in this entryincludes regulation of houses in private occupation, itshould not be interpreted as giving Parliament the powereven to legislate for eviction of tenants who may haveoccupied the houses under private arrangement with theowners. It should be confined to legislation for the purpose https://hcservices.ecourts.gov.in/hcservices/ of obtaining possession and allotment of such accommodationto military authorities or military officers. We cannotaccept that the word "regulation" can be so narrowlyinterpreted as to be confined to allotment only and not toother incidents, such as termination of existing tenanciesand eviction of persons in possession of the houseaccommodation. The dictionary meaning of the word"regulation" in the Shorter Oxford Dictionary is "the act ofregulating" and the word "regulate"' is given the meaning"to control, govern or direct by rule or regulation". Thisentry, thus, gives the power to Parliament to passlegislation for the purpose of directing or controlling allhouse accommodation in cantonment areas. Clearly, this powerto direct or control will include within it all aspects asto who is to make the constructions under what conditionsthe constructions can be altered, who is to occupy theaccommodation and for how long, on what terms it is to beoccupied, when and under what circumstances the occupant isto cease to occupy it, and the manner in which theaccommodation is to be utilised. All these are ingredientsof regulation of house accommodation and we see no reason tohold that this word "regulation" has not been used in thiswide sense in this entry."(v) In 2007 (2) CTC 207 (S. Bagavathy Vs. State of Tamil Nadu),the Full Bench of this Court held thus:"73. When an entry is to be given its widest meaningbut it cannot be so interpreted as to override another entryor make another entry meaningless and in case of an apparentconflict between different entries, it is the duty of thecourt to reconcile them.74. In interpreting the scope of various entries in thelegislative lists in the VII Schedule, widest-possibleamplitude must be given to the words used and each generalword must be held to extend to ancillary or subsidiarymatters which can fairly be said to be comprehended in it.The entries should, thus be given a broad and comprehensiveinterpretation. [vide. State of Gujarat v. Akhil GujaratPravasi V.S. Mahamandal 2004 (5) SCC 155]."(vi) The following paragraphs in In Hoechst Pharmaceuticals Ltd.and Ors. v. State of Bihar and Ors., - (AIR 1983 SC 1019) arerelevant:-(1) the various entries in the three Lists are not'powers' of legislation but 'fields' of legislation. TheConstitution effects a complete separation of the taxingpower of the Union and of the States under Article 246.There is no overlapping anywhere in the taxing power and theConstitution gives independent sources of taxation to theUnion and the States.(2) In spite of the fields of legislation having beendemarcated, the question of repugnancy between law made byParliament and a law made by the State Legislature may ariseonly in cases when both the legislations occupy the same https://hcservices.ecourts.gov.in/hcservices/ field with respect to one of the matters enumerated in theConcurrent List and a direct conflict is seen. If there is arepugnancy due to overlapping found between List II on theone hand and List I and List III on the other, the Stats lawwill be ultra vires and shall have to give way to the Unionlaw....(4) The entries in the List being merely topics or fields oflegislation, they must receive a liberal constructioninspired by a broad and generous spirit and not in a narrowpedantic sense. The words and expressions employed indrafting the entries must be given the widest possibleinterpretation. This is because, to quote V. Ramaswami, J.,the allocation of the subjects to the lists is not by way ofscientific or logical definition but by way of a meresimplex enumeration of broad categories. A power tolegislate as to the principal matter specifically mentionedin the entry shall also include within its expanse thelegislations touching incidental and ancillary matters.(5) Where the legislative competence of a Legislature of anyState is questioned on the ground that it encroaches uponthe legislative competence of Parliament to enact a law, thequestion one has to ask is whether the legislation relatesto any of the entries in Lists I or III. If it does, nofurther question need be asked and Parliament's legislativecompetence must be upheld. Where there are three Listscontaining a large number of entries, there is bound to besome overlapping among them. In such a situation thedoctrine of pith and substance has to be applied todetermine as to which entry does a given piece oflegislation relate. Once it is so determined, any incidentaltrenching on the field reserved to the other Legislature isof no consequence. The Court has to look at the substance ofthe matter. The doctrine of pith and substance is sometimesexpressed in terms of ascertaining the true character oflegislation. The name given by the Legislature to thelegislation is immaterial. Regard must be had to theenactment as a whole, to its main objects and to the scopeand effect of its provisions. Incidental and superficialencroachments are to be disregarded.(6) The doctrine of occupied field applies only when thereis a clash between the Union and the State Lists within anarea common to both. There the doctrine of pith andsubstance is to be applied and if the impugned legislationsubstantially falls within the power expressly conferredupon the Legislature which enacted it, an incidentalencroaching in the field assigned to another Legislature isto be ignored. While reading the three Lists, List I haspriority over Lists III and II, and List III has priorityover List II. However, still, the predominance of the UnionList would not prevent the State Legislature from dealingwith any matter with in List II though it may incidentallyaffect any item in List I. https://hcservices.ecourts.gov.in/hcservices/ (emphasis supplied)(vii) In State of Maharashtra Vs. Bharat Shanti Lal Shah andOthers (2008 (1) Scale 167) where the Maharashtra Control ofOrganised Crime Act, 1999 ('MCOCA" in short) was challenged on theground that the State Legislature did not have the legislativecompetence to enact such a law and also that the aforesaid law isunreasonable and is violative of the provisions of Article 14 of theConstitution of India, the Bombay High Court upheld theconstitutional validity of Sections 2(d), (e) and (f) and also theprovisions of Section 3 and 4 but struck down Sections 13 to 16 asunconstitutional as being beyond the legislative competence of theState Legislature. It held that Parliament alone has the power tomake law in that regard as provided for under Entry 31 of List I ofSeventh Schedule to the Constitution and since already the IndianTelegraph Act, 1885, a Central Act was holding the field, theprovisions of MCOCA which empowers the police to apply to thecompetent authority for approving the interception of wire,electronic or oral communication where there is evidence of anoffence involving a organized crime was beyond the legislativecompetence of the State Legislature. The State moved the SupremeCourt. The Supreme Court held that,"34. A perusal of the relevant provisions of MCOCAwould indicate that the said law authorizes the interceptionof wire, electronic and oral communication only if it isintended to prevent the commission of an organised crime orif it is intended to collect the evidence to the commissionof such an organized crime. Interception of wire, electronicand oral communication with the said intent in case ofurgency is also permitted under the State Act in which caseit is to be approved by an officer not below the rank ofAdditional Director General of Police within 48 hours ofoccurrence of interception."The Supreme Court referred to 1997 (2) SCC 453 (Stateof Bihar Vs. Bihar Distillaries Limited), wherein it held asfollows:"The approach of the court, while examining thechallenge to the constitutionality of an enactment, is tostart with the presumption of constitutionality. The courtshould try to sustain its validity to the extent possible.It should strike down the enactment only when it is notpossible to sustain it. The court should not approach theenactment with a view to pick holes or to search for defectsof drafting, much less inexactitude of language employed.Indeed, any such defects of drafting should be ignored outas part of the attempt to sustain the validity/constitutionality of the enactment. After all, an Act madeby the legislature represents the will of the people andthat cannot be lightly interfered with. Theunconstitutionality must be plainly and clearly establishedbefore an enactment is declared as void. The same approachholds good while ascertaining the intent and purpose of anenactment or its scope and application...." https://hcservices.ecourts.gov.in/hcservices/

39. We are of the considered opinion that source ofpower to legislate the aforesaid Act can be derived by theState from the aforesaid entries of the State List and theConcurrent List and while enacting the aforesaid State Actthe assent of the President was also taken. Therefore, theAct cannot be said to be beyond the legislative competenceof the State Legislature. The content of the said Act mighthave encroached upon the scope of Entry 31 of List I but thesame is only an incidental encroachment. As the main purposeof the Act is within the parameter of Entry 1 and 2 of theState Legislature we find no reason to hold that theprovisions of Sections 13 to 16 are constitutionally invalidbecause of legislative competence."The Supreme Court then considered that since the object of MCOCA isto prevent the organized crime even if the Act might have encroachedupon the scope of Entry 31, it is only an incidental encroachment andsince the main purpose of the Act is within the parameter of Entry 1and 2 of the State Legislature, there was no reason to hold that theprovisions of Sections 13 to 16 are constitutionally invalid becauseof legislative competence. (viii) With regard to incidental encroachment the Supreme Courtin AIR 1976 SC 1031 (K.S.E. Board Vs. Indian Aluminium Co.) whileexplaining the scope of Article 254 referred to AIR 1970 SC 228 (InduBhusan V. Sundara Devi) and said, " the subject-matter of thatlegislation incidentally trenches upon and might come to fall underanother List, the Act as a whole would be valid notwithstanding suchincidental trenching."(ix) In 1989 (3) SCC 634(cited supra), the Supreme Court stressedthat it is the duty of the Courts however difficult it may be toascertain to what degree and to what extent the authority to dealwith matters falling within these classes of subjects exists in eachlegislature and to define, in the particular case before them, thelimits of the respective powers. The Supreme Court held thus:"It is trite that the true nature and character of thelegislation must be determined with reference to a questionof the power of the legislature. The consequences and effectof the legislation are not the same thing as the legislativesubject matter. It is the true nature and character of thelegislation and not its ultimate economic results thatmatters."This is relevant in this case. The true nature and character of thesection, is that the State intends that for the better and properadministration only a citizen shall be qualified to be a trustee. Sothe State imposes a disqualification on non-citizens from holding thepost. It cannot be said that it is an unreasonable classification northat it is totally disconnected to the object sought to be achieved.The State Legislature can enact laws in respect of a religiousinstitution. If as a consequence foreigners are disqualifiedfrom holding the post, then that cannot be a reason for holdingthat the Legislature has made an inroad into the field covered by https://hcservices.ecourts.gov.in/hcservices/ List I. The impugned judgment has considered the competency of theState Legislature by looking at the impact of the legislation on onesingle foreigner namely the first respondent. We do not think thatapproach is correct. If the character of the legislation is onedealing with administration of religious institution for which theState has a concurrent power the possible consequence cannotinvalidate it. Anyway we also do not see on facts that therespondent had any 'existing right' as the impugned judgment callsit. (x)While drafting the original Section 26, the possibility offoreign national claiming trusteeship may not have been envisaged.But now the State has decided that Indian Citizenship is a pre-requisite before a person makes a claim to the office of thetrusteeship. It is purely and simply a provision dealing with theadministration of religious institution. If as is held in thedecisions referred to above, we have to give the widest amplitude toeach Entry, then the words "religious institution" will take in, allaspects of administration, which will include who shall be a trusteeand what shall be the trustee's qualification. To achieve thislegislative object if there is incidental trenching into Entry 17List I that has to be ignored. We have to sustain the legislation asfar as possible unless unconstitutionality stares in the face. Wefind that decision in 2008 (1) SCALE 167 (cited supra) answers almostall the objections. We have examined the provisions and we do notfind that it is ultravires or beyond the competence of the State.Therefore, this ground is also rejected. 8. For all these reasons, the judgment of the learned SingleJudge is set aside and the writ appeals are allowed. No costs. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.glpTo1.The Secretary & Commissioner Commercial Taxes and Charitable Endowments DepartmentFort St. GeorgeMadras – 600 009 https://hcservices.ecourts.gov.in/hcservices/

2.The CommissionerHindu Religious and CharitableEndowments AdministrationDepartment, Mahatma Gandhi Adigal Salai, NungambakkamMadras – 600 034+ 1 CC To Mr.V.Ayyadurai, Advocate SR NO.7459+ 1 CC To Mr.R.Subramanian, Advocate SR NO.7411+ 1 CC To Mr.K.Chandrasekaran, Advocate SR NO.7364+ 1 CC to the Government Pleader SR NO.7406 W.A.Nos.117 of 2006and 2146 of 2005SSR {CO}TP/16.4.2009.