BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 31/01/2011 CORAM THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN W.P.(MD)No.528 of 2011 and M.P.(MD)Nos.2 and 3 of 2011 1.C.N.Eswara Iyer 2.R.Subramania Iyer 3.S.Swaminatha Iyer 4.P.A.Sankaran Iyer 5.S.Gnamani Iyer 6.A.Cellapa Iyer 7.M.Kannan Iyer ... Petitioners Vs. 1.The Commissioner, Hindu Religious and Charitable Endowment Board, Uthamar Ghandhi Road, Nungampakkam, Chennai. 2.The Executive Officer/Joint Commissioner, Arulmighu Subramania Swamy Thirukkoil, Tiruchendur. ... Respondents Prayer Writ Petition is filed under Article 226 of the Constitution of India praying for the issue of a Writ of Certiorari, to call for the records of the first respondent in his proceedings Mu.Mu.No.70805/2009 Z2, dated 13.03.2010 and the consequential order passed by the second respondent in his proceedings Na.Ka.No.8004/2009 A6, dated 31.12.2010 and quash the same as illegal and enforceable. !For Petitioners ... Mr.S.Meenakshi Sundaram ^For Respondent No.1 ... Mr.S.C.Herold Singh Government Advocate For Respondent No.2 ... Mr.R.Thiagarajan Senior Counsel For Mr.PT.S.Narendravasan ******** :ORDER
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Challenge in this Writ Petition is to the proceedings of the first
respondent dated 13.03.2010 and the consequential proceedings issued by the
second respondent dated 31.12.2010, whereby and whereunder the petitioners were
directed to hand over the six keys of the temple jewellery room.
THE FACTS IN OUTLINE:
2. The petitioners are the members of Thiriswanthira Sthalathar.
They are also called as Mukkani Brahmins. They are functioning as the
Sthalathars in Sri Subramania Swamy Thirukkovil at Thiruchendur. They are
service holders entitled to various services other than performance of pooja.
While founding the place at Thiruchendur, Lord Subramania set up 2000 families
to attend the services and accordingly, the petitioners have been performing
their services. The petitioners are performing the services in Kaiyatchi,
Kattiam, Athyanam, Veda Parayanam, Panchangam and Asirvadam.
3. The jewels of the deity are kept in the Karuvulam. The jewels for
adorning the deity during festival days are kept in Peria Seppu. Goldchapram and
silver chapram are kept in vahana room. Parivattams for the deity are kept in
Pattupetti. The Sthalathars are responsible for the jewellery and the keys were
in the possession of their predecessors-in-interest and at present, the
petitioners are doing the said service.
4. The Karuvulam has got two doors. The outer door has got one lock
and insofar as the inner door is concerned, there are three locks. The keys of
the four locks are in the custody of four Padikarargal. They would keep the keys
in turn. There are two locks for Periaseppu. The keys of those two locks are in
the custody of the fourth Padikarar. There is only one lock for Pattupetti and
the key of the said lock is in the custody of the first Padikarargal. The keys
were never in the custody of the Executive Officer. The Vahana Arai has got four
locks and the keys of those four locks are in the custody of four Padikarargal.
5. The Sthalathars have been doing the service and for keeping
custody of the keys, they would get pongal, sweet pongal, puliyotharai and
coconut surul from the temple. The petitioners used to receive Sambavanai for
adorning the deity with special angi.
6. The Sthalathars are given two keys of the Karuvulam and vahana
room and the other two keys are with the Clerks of the temple. The keys of the
locks are put in a bag and after sealing, it would be given to the petitioners.
Similarly, after verifying the seals, the bag containing the keys would be
opened. The Executive Officer has taken a sum of Rs.1,000/- from the petitioners
as security for keeping the keys. The temple has got a list of Padikarargal.
During the time of taking the jewels, the Sthalathars, Karuvula Kanakkar, Pothi,
Bhatter, Mahamandapam Para, Maniakarar, Watchman at Moolasthanam and Shanmugar
Sannadhi and the Peishkar of the temple would be present. They would make
entries in the Register and only after signing the register, jewellery would be
taken out. Similarly, the jewellery would be deposited after making necessary
entries.
7. The person, who is in-charge of the double lock room in the
Thiriswanthira Sthalathar, is called as Kaiyatchi. The present petitioners are
the Kaiyatchis and they have been doing this work from 2008 onwards.
8. The petitioners were doing their religious service and the said
custom has been in practice from time immemorial.
9. While the matters stood thus, the second respondent has sent a
communication dated 31.12.2010, directing the petitioners to hand over the six
keys available with them. The said communication contains a reference about the
proceedings dated 13.03.2010 on the file of the first respondent. However, the
proceedings dated 13.03.2010 was not given to the petitioners. The second
respondent issued the impugned proceedings, calling upon the petitioners to hand
over the keys. Feeling aggrieved by the proceedings dated 13.03.2010 and the
consequential order passed by the second respondent dated 31.12.2010, the
petitioners are before this Court.
THE CASE OF THE DEPARTMENT:
10. The second respondent has filed a counter. The material portion
of which reads thus:
(a) The keys relating to the outer doors and inner doors were
originally in the custody of the Sthalathars. There was a complaint of
misappropriation against the Sthalathars, who were in-charge of the Treasure
during the year 1966. Those four Sthalathars have misappropriated the jewels and
as such, action was taken against them.
(b) Subsequently, in the year 1967, two out of the four keys were
taken over by the temple authorities and the other keys meant for outer door and
inner door of the Karuvulam continue to be with the Sthalathar. For every day
use, the jewels are taken from the Karuvulam in the presence of Karuvula
Kanakkar, Pothi, Bhattar, Maniakar, Sthalathars and the watchman of Moolavar and
Shanmugar, after making necessary entries in the register. Similarly, at the end
of the day, prior to the rakala abishekam, the jewels would again be replaced in
the karuvulam in the presence of the Karuvula Kanakkar and others. The
petitioners were keeping the keys from the year 2008 onwards.
(c) There were complaints about the Sthalathars with respect to
misappropriation and mishandling of temple jewels.
(d) The temple authorities have earlier filed a suit in O.S.No.113
of 1969 before the Sub Court, Tuticorin against the Sthalathars and the said
suit was decreed as per judgment and decree dated 02.08.1977. The decree was
confirmed in appeal as per judgment and decree dated 03.07.1986 in A.S.No.500 of
1980.
(e) The activities of the petitioners were not conducive for a
proper administration of the temple and its properties. Therefore, the Board of
Trustees passed a resolution on 28.11.2009 resolving to recover the keys of
Karuvulam from the Sthalathars. The said resolution was forwarded to the first
respondent for appropriate action. The first respondent, after considering the
report submitted by the Joint Commissioner, approved the resolution and it was
resolved to authorize the Joint Commissioner to break open the Karuvulam in the
presence of officers, in case the Sthalathars failed to hand over the keys to
the temple administration. It was only pursuant to the said proceedings dated
13.03.2010, the second respondent has issued the impugned communication dated
31.12.2010.
(f) The petitioners are not performing any essential religious
functions or ceremony relating to the religious affairs of the temple.
Therefore, their claim that the service regarding the safe custody of the jewels
was essentially a religious practice appears to be incorrect.
THE ARGUMENTS:
11. The learned counsel for the petitioners contended thus:
(a) There was a Scheme decree dated 30.09.1930 in O.S.No.4 of 1929
on the file of the learned District Judge, Tirunelveli. The decree contains a
clear statement indicating that the jewels and other valuables of the
Devasthanam shall be kept in the Karuvulam of the Devasthanam under lock and key
and the key shall be in the custody of the Sthalathars. Therefore, the first
respondent was not justified in passing the impugned order without modifying the
Scheme.
(b) It is not possible for the petitioners to open the jewellery
room, unless the other key is made available by the Executive Officer.
Therefore, it cannot be said that the petitioners have indulged in an act of
misappropriation with respect to the temple jewellery.
(c) The petitioners were doing various religious practices and the
safe custody of the temple jewellery is part of their religious practice and as
such, it was not open to the respondents to take away the said right without the
authority of law.
(d) Rule 10 of the Religious Institutions Custody of Jewels,
Valuables and Documents and Disposal Rules gives an indication that the right of
possession declared by a scheme or a decree has to be given due weight. The
civil Court has already framed a Scheme and the said Scheme provides for keeping
the key with the Sthalathars. Therefore, the order passed by the first
respondent without modifying the Scheme, is liable to be set aside.
12. The learned Senior Counsel for the second respondent would
submit thus:
(a) The Scheme has already been cancelled by the Commissioner, Hindu
Religious and Charitable Endowments Department, as per notification in
G.O.Ms.No.4448. P.H., dated 12.12.1938. Therefore, the Scheme decree is no
longer in force.
(b) Section 42 of the Hindu Religious and Charitable Endowments Act,
1959 [hereinafter referred to as “the Act”] provides that no office holder or
servant of a religious institution or other person shall have the right to
possess the jewels, unless there is a direction by the Commissioner. Therefore,
the petitioners have no right to retain the jewellery and the keys of the
jewellery room.
(c) The Commissioner, Hindu Religious and Charitable Endowments
Department has already issued the proceedings dated 08.01.1953, whereby and
whereunder the custody of the jewellery was entrusted to the Executive Officer
of the temple.
(d) The petitioners have no connection with the affairs of the
temple and as such, they cannot be heard to say that they should be permitted to
retain the keys of the jewellery room.
(e) The proceedings of the Commissioner cancelling the Scheme has
not been challenged and as such, no reliance could be placed on the said Scheme.
ANALYSIS:
13. The only issue, which arises for consideration in the Writ
Petition, is as to whether the first respondent was justified in issuing the
proceedings dated 13.03.2010, directing the petitioners to hand over the key and
the consequential proceedings issued by the second respondent dated 31.12.2010
to implement the said order.
14. The petitioners have claimed the custody of the jewellery room
and the keys on the basis of the custom. According to the petitioners, they have
been functioning as Sthalathars and the keys of the temple jewellery box has
been in the possession of their predecessors-in-interest and the said right
devolved on them. In short, the petitioners have claimed the possession of keys
as a matter of right. They have placed reliance on the Scheme decree in O.S.No.4
of 1929, dated 30.09.1930 on the file of the learned District Judge,
Tirunelveli. The Scheme decree provides that the outer lock of Karuvulam and the
keys of the Karuvulam shall be in the custody of the Sthalathars and it should
be securely wrapped and sealed by the trustee or his nominee and the Karuvulam
will not be shut or opened without due notice to the trustee or his agent or
nominee. Therefore, the decree contains an indication that the keys would be
with the Sthalathars.
15. The question is whether keeping the keys by the petitioners
would amount to an essential religious practice.
16. Section 65 of the Act deals with the power of the Commissioner
to settle the Schemes. Section 65(4)(a) of the Act gives power to the
Commissioner to modify the Scheme. The said provision reads thus:-
“65(4)(a).- The Commissioner may, at any time after consulting the
trustee, by order, modify or cancel any scheme in respect of a math or a
specific endowment attached to a math and in force and settled under sub-section
(1) or any scheme in force settled or modified by the Board under the Tamil
Nadu Hindu Religious Endowments Act, 1926 ([Tamil Nadu] Act II of 1927), or
deemed to have been settled under that Act or any scheme in force settled or
modified by the Commissioner under this Act or any Scheme in force settled or
modified by the Court in a suit under sub-section (1) of section 70 or on an
appeal under sub-section (2) of that section or any such scheme in force deemed
to have been settled or modified by the Court under clause (a) of sub-section
(2) of section 118:
Provided that such cancellation or modification of a scheme in force
settled or modified by the Court in a suit under sub-section (1) of section 70
or of an appeal under sub-section (2) of that section or of a scheme in force
deemed to have been settled or modified by the Court under clause (a) of sub-
section (2) of section 118 shall be made only subject to such conditions and
restrictions as may be prescribed.
(b) If the Commissioner is satisfied that any such scheme referred to in
clause (a) is inconsistent with this Act and the rules made thereunder, he may,
at any time, modify it in such manner as may be necessary to bring it into
conformity with the provision of this Act and the rules made thereunder.”
17. The Scheme framed by the Court as per judgment and decree dated
30.09.1930 in O.S.No.4 of 1929 has already been cancelled by the Commissioner,
as per notification in G.O.Ms.No.4448. P.H., dated 12.12.1938. The petitioners
have not challenged the said order in the manner known to law.
18. There is no dispute that the power to modify or cancel the
Scheme can be exercised by the Commissioner suo motu. The Commissioner has taken
suo motu action and accordingly, the Scheme decree was cancelled. Without
challenging the said order, the petitioners cannot be heard to say that they
should be permitted to get the key on the basis of the decree in O.S.No.4 of
1929. The proceedings of the Commissioner, Hindu Religious and Charitable
Endowments Department, dated 08.01.1953 and the appendix to the said proceedings
contains indication about the powers of the Executive Officer. The petitioners
have not produced materials to show that keeping the keys of the jewellery room
was in the nature of an essential religious practice. The affidavit filed in
support of the Writ Petition does not contain any such material to arrive at a
conclusion that it was only as part of the essential religious practice, they
had been keeping the keys of the jewellery room.
19. Section 42 of the Act deals with the custody of the temple
jewellery. The said provision reads thus:
“42. Office-holders and servants of religious institutions not to be in
possession of jewels, etc., except under conditions.-
Notwithstanding anything contained in any scheme settled or deemed to have
been settled under this Act or in any decree or order of a Court or any custom
or usage to the contrary, no office-holder or servant of a religious institution
or other person shall have the right to be in possession of the jewels or other
valuables belonging to the religious institution except under such conditions
and safeguards as the Commissioner may, by general or special order, direct.”
20. Section 42 of the Act provides that no office holder or servant
of a religious institution shall have the right to be in possession of the
jewels or other valuables belonging to the religious institution,
notwithstanding anything contained in any scheme settled or deemed to have been
settled under the Hindu Religious and Charitable Endowments Act or in any decree
or order of a Court or any custom or usage to the contrary. Therefore, any
arrangement or Scheme regarding the custody of the jewels, insofar as it is
inconsistent with section 42 has to be ignored. The petitioners have not
challenged the validity of Section 42 of the Act. Therefore,it is not open to
the petitioners to claim custody of the jewels as a matter of right
notwithstanding Section 42 of the Act.
21. Rule 10 of the Religious Institutions Custody of Jewels,
Valuables and Documents and Disposal Rules has to be read along with Section 42
of the Act. A conjoint reading of Section 42 and Rule 10 would give a clear
indication that the keys of the jewellery box have to be in the custody of the
department at all point of time.
22. The second respondent, in his counter-affidavit and more
particularly, in paragraph No.5, referred about the misappropriation of jewels
by the four Sthalathars. In fact, the suit itself was instituted by the temple
as against the Sthalathars in O.S.No.113 of 1969. The said suit was decreed and
the judgment and decree of the trial Court was confirmed in appeal. The
petitioners were not appointed to any position in the temple. When there was a
complaint preferred against the Sthalathars, with regard to the misappropriation
of jewels, it cannot be said that the first respondent was not justified in
passing the impugned order directing the Sthalathars to hand over the keys of
the jewellery room. The petitioners have no case that the respondents have
interfered in their performance of religious services. The impugned order was
pertaining to the keys of the jewellery room. It has nothing to do with any
other services performed by the petitioners. In view of Section 42 of the Act
and the cancellation of the Scheme decree by the Commissioner, it was not open
to the petitioners to claim that the keys of jewellery box should be with them
at all point of time.
23. The petitioners claim protection under Articles 25 and 26 of the
Constitution of India to retain their right to keep the keys of the jewellery
room.
24. There is no dispute that the Constitution protects such
practices which are essentially in the nature of religious practices. In case
those practices are found to be essential and integral parts of their religion,
the Constitution protection would extend even to those practices. Therefore, the
term “integral part of the religion” assumes significance. There should be
materials placed before the Court to demonstrate that a particular practice has
attained the character of an essential religious practice.
DISPOSITION:
25. The materials produced by the petitioners does not show that the
practice of keeping the keys of the jewellery room was in the nature of an
essential religious practice or ceremony. Therefore, I do not find any merit in
the contentions raised by the petitioners.
26. In the upshot, I dismiss the Writ Petition. Consequently, the
connected miscellaneous petitions are also dismissed. No costs.
SML
To
1.The Commissioner,
Hindu Religious and Charitable
Endowment Board,
Uthamar Ghandhi Road,
Nungampakkam,
Chennai.
2.The Executive Officer/Joint Commissioner,
Arulmighu Subramania Swamy Thirukkoil,
Tiruchendur.