Jalakandeswarer Dharmastabanam v. The Government of Tami Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 19 / 07 / 2012CORAMTHE HONOURABLE MR.JUSTICE K.CHANDRUW.P.NO.30690 OF 2008Jalakandeswarer Dharmastabanam Rep. by its Hon. Secretary4/37, Vinayakar Koil Street, Vellore – 632 001. ... Petitioner Versus1.The Government of Tami Nadu Rep. by Secretary Department of Hindu Religious and Charitable Endowments Fort St. George, Chennai. 2.The Commissioner Hindu Religious and Charitable Endowments Nungambakkam High Road, Nungambakkam, Chennai. ... RespondentsPRAYER: Writ Petition filed under Article 226 of the Constitution ofIndia praying for the issuance of Writ of Certiorari, quashing theimpugned order passed by the 2nd respondent in his proceedingsNa.Ka.No.52980/2008/A1 dated 24.09.2008 directing ArulmiguJalakandeswarer Temple, Fort, Vellore, to be included in the list oftemples under Section 46(iii) of the TN HR & CE Act and publishingit. For Petitioner:Mr.T.P.Prabakaran For Respondents: Mr.S.Kandaswamy Special Government Pleader (HR & CE)O R D E RThe writ petition is filed by the petitioner claiming tobe the Honorary Secretary of Sri Jalakandeswarar Dharmastabanam, https://hcservices.ecourts.gov.in/hcservices/ Vellore. In this writ petition, the petitioner challenges the orderdated 24.09.2008 passed by the second respondent Commissioner, HinduReligious and Charitable Endowments, Chennai directing ArulmihguJalakandeswarer Temple, Fort, Vellore to be included in the list oftemples under Section 46(iii) of the Tamil Nadu Hindu Religious andCharitable Endowments Act, 1959 (Shortly "the Act") and forpublishing it. 2.When the writ petition came up for admission on23.12.2008, notice of motion was ordered. Pending the writ petition,an interim stay was granted on 26.03.2009. Aggrieved by the same,the respondent State filed a vacate stay application in M.P.No.1 of2009 together with supporting counter affidavit dated 16.07.2009sworn to by the second respondent. However, this Court made theinterim stay absolute and dismissed the vacate stay application byan order dated 27.08.2010 and admitted the writ petition on the sameday. 3.The case of the petitioner was that he is the HonorarySecretary of Sri Jalakandeswarar Dharmastabanam, Vellore, which is aSociety registered under the Registration of Societies Act, 1975 andit is devoted to altruistic aims and noble objectives. It is underthe management and administration of Arulmighu JalakandeswararTemple situated in Vellore Fort, which is an ancient monumentpreserved under the Ancient Monuments Preservation Act, 1904, videG.O.Ms.No.449, dated 23.03.1921. The Vellore Fort has been declaredas one of the ancient monuments. It was claimed that during Musliminvasion, the temple, which is situated inside the Vellore Fort, wasvandalised and religious worship came to an end. The presiding deityand other deities were removed. At present, the Vellore Fort isunder the control and maintenance of Archaeological Survey of India.The deities which were removed from the Fort were kept intact andattempts were made to reinstall the presiding deity in its originalplace and to revive religious worship within the precincts of thetemple. However, those attempts did not fructify and in the year1981, prominent citizens of Vellore installed the presiding deity,namely Lord Jalakandeswarar at the temple and commenced worshipdespite stiff governmental opposition. But, in the course of time,worship came to be permitted and the petitioner Society is managingthe temple and its affairs. The Archaeological Survey of India hashanded over the keys of the temple to the petitioner Society.Further, Mahakumbabishekam was performed in the year 1982. Thepetitioner Society had installed about 90 idols sculpted in stoneand 106 idols made of Panchalokas. The petitioner Society also spentsubstantial amount towards construction 22 vimanas, silver kavachamand silver ornaments. The Gopurams were adorned with goldenkalasams. The petitioner Society purchased gold ornaments for thedeities. Number of festivals were celebrated by the petitionerSociety. Whenever any shamiana or pandal has to be erected, https://hcservices.ecourts.gov.in/hcservices/ permission from the Archaeological Survey of India has to beobtained. Since it is under the control of the Archaeological Surveyof India, no permanent structure was allowed to be erected by theArchaeological Survey of India. 4.A suit in O.S.No.384 of 1981 was filed in arepresentative capacity by the worshippers to declare the right ofthe plaintiffs to offer worship in the temple and for permanentinjunction against the State Government as well as theArchaeological Survey of India. The State Government took a specificstand that the Temple is a protected monument and it was the duty ofthe Archaeological Survey of India to protect the ancient monument.However, the suit was withdrawn. 5.In effect, after the withdrawal of the suit, theArchaeological Survey of India permitted the petitioner Society tomanage the temple on 24.10.1989. There are 50 employees in theservice of the temple of whom, 20 are Archakars. The salaries of theArchakars and the other employees were paid by the petitionerSociety. The Temple is not endowed with any immovable property andit does not have any fixed income. There is no complaint against thepetitioner Society in maintaining the temple. The respondent HR&CEDepartment have not adopted any procedure prescribed by law innotifying the temple under the provisions of the Act. At no point oftime, show cause notice was issued to the petitioner Society priorto the notification. It was informed that the AssistantCommissioner, HR&CE Department, vide his proceedings dated22.05.2003 declared that Sri Jalakandeswarar Temple is a Hindupublic temple, which has been brought under the control of theDepartment and it has to be managed in accordance with theprovisions of the Act. 6.It is the case of the petitioner Society that theDepartment did not bring it under its control and management at anypoint of time. By another notice dated 20.03.2003, the AssistantCommissioner, HR & CE Department called upon the templeadministrators to produce all sorts of accounts and also asked themto show cause as to why Non-Hereditary Trustees should not beappointed to the temple, even though it is under the control ofArchaeological Survey of India. 7.The said notice was challenged by the petitioner Societyin W.P.No.10434 of 2003 and the writ petition was allowed by thisCourt on the ground that common notice was given. In the show causenotice dated 22.05.2003, the petitioner Society was asked to showcause as to why a Fit Person should not be appointed for the temple.8.The show cause notice was challenged in W.P.No.17632 of2003. While disposing of the said writ petition, this Court directed https://hcservices.ecourts.gov.in/hcservices/ the respondent Department to decide as to the authority andjurisdiction of the respondent to issue the impugned show causenotice and as to the applicability of the Act before proceedingfurther in the matter. 9.The petitioner Society preferred an appeal against thesaid order, in W.A.No.2856 of 2003. The writ appeal was allowedholding that if the temple is notified under Section 46 of the Actand if for any reason, the respondents want to proceed against theappellant, they will issue notice to the appellant. 10.According to the petitioner, the temple do not comewithin the definition of temple contained in the Act and theprovisions of the Act have not been made applicable to the temple.Since it is a protected monument, members of all religions andcommunities have free access thereto. Besides, Islamic people alsovisits the temple on occasions in large numbers and the Vellore Fortis getting a tourism attention. When the temple admits members ofevery religious persuasion without restriction, it cannot be said tobe a religious institution meant for exclusive Hindu worship. Thepetitioner Society receives contributions from members of allreligions for the performance of religious and secular functions inthe temple. The provisions of the Act are inapplicable to amonument. 11.In the counter affidavit filed by the secondrespondent, it was stated that Arulmighu Jalakandeswarar Temple,Vellore Town, Vellore District is a public religious institution asdefined under Section 6(18) and 6(20) of the Act. The images oridols of deities originally existed in the said temple were said tohave been mutilated and removed by foreign invaders during 17thCentury. Thereafter, religious practices prevailed at that time,such as daily poojas, festivals and public worship became extinct inthe temple for many years. Despite this, the strong structures ofthe temple alone sustained to stand without getting perished evenafter passage of several decades as deity. As several historicalevents known to have been occurred inside the Vellore Fort, in whichthe temple is situated, the Archaeological Survey of India took thewhole Vellore Fort under its control, which includes the temple onlyas a place of monument and place of historical importance. In duecourse of time, the local public at large having strong faith inHindu religion took steps to restore the temple in its originalform. They sincerely worked for the same and had installedappropriate images of deities in the temple during the year,overcoming the problems and legal battle with Archaeological SurveyDepartment. Later, amicable settlement was arrived at and the Hindupeople consecrated the deities already installed according to HinduCustoms and Usage prescribed in the Agama Shastras. Thereafter,daily poojas are revived and in due course of time, various https://hcservices.ecourts.gov.in/hcservices/ festivals gradually commenced to be performed and thereby the Hindupeople used to visit the temple to perform poojas and worship in thetemple. 12.It is at that time the petitioner Society came intopicture and inducted itself in the day today administration of thetemple, purportedly with the permission of Archaeological Survey ofIndia. The flow of devotees to the temple was increased day by dayand voluntary offerings made by the public both in cash and kindconsiderably increased in due course. Hundials were also installedinside the temple and money valued tickets for the performance ofKodi Deepam, Ghee Deepam etc., were also introduced, besidesdonation tickets. Even though the day today administration ispractically with Sri Jalakandeswarar Dharmasthapanam, it is onlymaintaining the temple from the contributions of general publiccollected in various forms. Maha Kumbabhishekam was also performedin the year 1982 by the general public. Since several complaintswere received, the Commissioner of HR & CE Department, the secondrespondent herein, by an order dated 24.02.2003, brought the templeunder the control of the HR & CE Department, as the temple is apublic temple and it attracts Section 1 of the Act. 13.Following the order dated 24.02.2003 of theCommissioner, the Assistant Commissioner, HR & CE Department,Vellore, who is the competent authority to appoint a Trustee or aFit Person to a institution not published under Section 46 of theAct, passed an order dated 20.03.2003 calling upon the petitionerSociety to show cause as to why Non-Hereditary Trustees should notbe appointed. This was followed by another order, by which theExecutive Officer of Arulmighu Narayana Reddy Chatram,Thottapalayam, Vellore, was appointed as a Fit Person to the temple,pending constitution of a Trust Board. 14.The said order was challenged by the petitioner Societyin W.P.No.10434 of 2003 and the writ petition was disposed on04.04.2003 by recording that the Department would take furtherproceedings in accordance with law to appoint a Fit Person, afterissuing notice and after giving opportunity to the petitionerSociety and thus, the impugned orders were set aside. This Courtalso held that it is for the authorities to proceed further inaccordance with law and till then, the petitioner's right to managethe temple should not be interfered with. 15.As against the said order of this Court, no appeal waspreferred and pursuant to the said order dated 04.04.2003, theAssistant Commissioner, HR & CE Department, issued a show causenotice to the petitioner Society asking them to show cause as to whya Fit Person should not be appointed to the temple. It was clearly https://hcservices.ecourts.gov.in/hcservices/ stated in the show cause notice that an enquiry will be held in thisregard as directed by this Court. 16.However, for the reasons best known, the petitionerSociety filed a second writ petition in W.P.No.17632 of 2003 againstthe show cause notice. This was mainly on the ground that the templeis under the control of Archaeological Survey of India and theAssistant Commissioner, HR & CE Department has no jurisdiction toissue such show cause notice. This Court disposed the said writpetition with a direction to the petitioner Society to raise allcontentions, including the question of jurisdiction of therespondent to interfere with the affairs of the temple in question,as well as the applicability of the Act to the temple in question. 17.As against the same, the petitioner Society filed anappeal in W.A.No.2856 of 2003. Though the Division Bench initiallyobserved that they do not want to interfere with the order of thelearned single Judge, but directed the Department and the writpetitioner to file an affidavit about the income of the temple,since the Division Bench felt that the Assistant Commissioner is notthe proper authority to issue show cause notice, as if the income ofthe temple is more than Rs.10 Lakhs. The other contention regardingthe jurisdiction of the Department was rejected by order dated11.07.2008 and the Division Bench posed the following threequestions:(i)Whether the temple in question was included inthe list published under Section 46 of the HinduReligious and Charitable Endowments Act?(ii)If it is not included in the list underSection 46 of the Act, what is its actualincome?(iii)The nature of mis-management as allegedagainst the Society and it must be made specificand not vague. 18.In obedience to the orders of this Court, it wassubmitted that the temple was not included in the list, as theactual income was not calculated as per Section 92 of the Act and asthe petitioner Society was not furnished the accounts to the HR & CEDepartment. Thereafter, on the basis of the statement filed by thepetitioner Society, the Division Bench prima facie found that theincome of the temple was more than Rs.10,000/- and it can be morethan Rs.2 Lakhs and since the notice was issued by the authority notcompetent, the respondents were asked to show cause as to why itshould not be set aside. 19.Thereafter, a report was submitted on the basis of thequestions raised by the Division Bench to the effect that the income https://hcservices.ecourts.gov.in/hcservices/ of the temple exceeds Rs.10,000/- as per the audit reports andhence, the temple will be published under Section 46 of the Act andthus, the show cause notice issued by the Assistant Commissionerwill be withdrawn. Though normally an enquiry will be conducted bythe Assistant Commissioner regarding appointment of the Fit Person,pending constitution of the Trust Board, the Department came comeforward to file an affidavit before the Division Bench. Since thepetitioner Society themselves admitted the income to be around Rs.40Lakhs in respect of three years ending with 31.03.2005, 31.03.2006and 31.03.2007, it is suffice to state that income of the temple wasmore than Rs.10 Lakhs and thus, it falls under Section 46 (iii) ofthe Act. The operative portion of the order of the Division Benchreads as follows:"A question is being raised with regard tothe jurisdiction of the Assistant Commissioner ofHindu Religious and Charitable Endowments Board, whoissued the pre-impugned notice dated 22nd May, 2003.Such question was raised in view of Section 46 ofthe said Act, wherein only higher officers than theAssistant Commissioner has been empowered to takeaction, depending upon their annual income of thetemple. The appellant was directed to submit areport showing its annual income of last threefinancial years. From the report submitted by the appellants,it appears that the annual income of the temple ismore than Rs.10 Lakhs per annum. In suchcircumstances, as prima facie, it was found that theAssistant Commissioner may not have jurisdiction toissue the notice, the 1st respondent sought for timeto reconsider the matter.Today when the case was taken up, the learnedcounsel appearing for the 1st Respondent filed anaffidavit, wherein at Paragraph 3 they have noticedthat the annual income of the appellant was morethan Rs.40 lakhs and has taken plea that in view ofthe provision of Section 46 of the said Act, theshow cause notice by the 1st Respondent / AssistantCommissioner will be withdrawn as the same will beinoperative after the said publication under Section46 of the said Act. In view of the stand taken by theRespondents, we set aside the proceeding dated 22ndMay 2003, issued by the 1st respondent / AssistantCommissioner and the impugned order dated 27.6.2003 https://hcservices.ecourts.gov.in/hcservices/ passed by the learned single Judge in W.P.17632 of2003 with liberty to the 1st Respondent to proceedin accordance with law. It is made clear that if thetemple is notified under Section 46 and if, for anyreason, the respondents want to proceed against theappellant, they will issue notice to the appellant.In such case, the appellant may take all the pleasas taken in this appeal and will co-operate with therespondents."20.Therefore, in the light of the order passed by theDivision Bench, there is no impediment for the Department to proceedwith the issuing of notification under Section 46 of the Act.Section 6(20) of the Act reads as follows:"Temple means a place whatever designationknown, used as a place of Public Religious worshipand dedicated to or for the benefit of, or used asof right by the Hindu Community or of any Sectionthereof, as a place of Public Religious worship."21.Therefore, there is no doubt that ArulmighuJalakandeswarar temple is a public institution covered by theprovisions of the Act. It is in the light of this, it has to be seenas to whether the contentions raised by the petitioner can becountenanced by this Court. It is surprising that the petitioner isappropriating and re-appropriating in the matter of coming into thepossession of the temple. It is no doubt true that the entire areais under the control of Archaeological Survey of India as amonument. But once when the right of worship is allowed, then italso becomes a religious institution coming under the provisions ofthe Act and depending upon the income received from the public, theauthorities are entitled to include the temple in the list oftemples under Section 46 of the Act. Therefore, having two rounds oflitigation and having accepted the income, the impugned notificationissued by the Commissioner is well within his power. The furthercontention of the petitioner that people of other religions areallowed inside the temple, does not stand to reason, as thepetitioner themselves have admitted that the installation of idols,continuous festivals and poojas are being performed only in the formprescribed in the Agama Shastras. Merely because they were allowedto maintain the temple, as the idols were forcibly brought by them,does not have any jurisdiction to the Management to establish. Whenpublic collections are made and the people are allowed to worshipand the expenditure is meant from the public funds, there is noillegality in the order passed by the second respondent and theearlier orders passed by this Court are not violated. Therefore, it https://hcservices.ecourts.gov.in/hcservices/ is for the respondents to proceed further pursuant to the impugnednotification and this Court is not inclined to interfere with theimpugned order. Hence, the writ petition stands dismissed. No costs.Sd/-Assistant Registrar/True Copy/Sub Assistant Registrar TKTo1. The Secretary Government of Tamil Nadu Department of Hindu Religious and Charitable Endowments Fort St. George, Chennai. 2.The Commissioner Hindu Religious and Charitable Endowments Nungambakkam High Road, Nungambakkam, Chennai. +1 CC to Mr.T.P.Prabakaran,Advocate, SR.No.421371 CC to Government Pleader, Advocate, SR.No.42195W.P.NO.30690 OF 2008VSN(CO)SRA 7/8/2012