BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 13/12/2010 CORAM THE HONOURABLE MRS.JUSTICE R.BANUMATHI and THE HONOURABLE MR.JUSTICE R.SUBBIAH W.A.(MD) No.705 of 2010 The Superintending Archaeologist Archaeological Survey of India, FF, 19-A-KSHB Flats, Pullazhy Post, Thrissur, Kerala State. ... Appellant Vs. 1.Kudaivarai Kovil Thirumalpuram rep. by its President Shri.S.Mahendran. 2.The District Collector, Tirunelveli District, Tirunelveli. 3.The Tahsildar, Sankarankoil Taluk, Sankaratkoil. 4.The Inspector of Police, Senthamaram Police Station, Sankarankoil Taluk, Sankarankoil. ... Respondents. PRAYER Writ Appeal is filed under Clause 15 of the Letters Patent against the order dated 11.02.2010 in W.P.(MD) No.1405 of 2010 on the file of this Court. !For Appellant ... Mr.S.M.Deenadayalan ^For Respondents 2-4 ... Mr.R.Janakiramulu, Special Government Pleader. For 1st Respondent ... Mr.S.S.Sundar Amicus Curie :JUDGMENT
R.SUBBIAH,J.
The question that has fallen for consideration in this appeal is whether
the restriction imposed by the Archaeological Department for the celebration of
“Mahasivarathiri” in Kudaivarai Kovil/Two Rock Cut Temple, Thirumalpuram, to the
public from sunrise to sunset is legally sustainable.
2.This Writ Appeal arises out of the order made in W.P.(MD) No.1405 of
2009, dated 11.02.2010 whereby the learned single Judge permitted the petitioner
to celebrate “Mahasivarathiri” during night hours and directed the Deputy
Superintendent of Police, Puliyangudi to provide necessary police protection for
the smooth conduct of the festival.
3.Brief facts which are necessary to decide the issue involved in this
appeal are as follows:
a)Though originally regular poojas were being offered by the devotees, it
fell into disuse after the Kudaivarai Kovil/Two Rock Cut Temple, Thirumalpuram
was declared to be an ancient monument in the year 1922 under the Ancient
Monuments Preservation Act, 1904. At present, the said temple is under the
control of the Archaeological Survey of India and governed by the provisions of
the new Act viz., The Ancient Monuments and Archaeological Sites and Remains
Act, 1958 (hereinafter called as ‘the Act and Rules, 1958) and the Rules of 1959
made thereunder.
b)From the year 1980 onwards by the residents of that locality and the
devotees, Thirukarthigai festival and Sivarathiri festival are being celebrated
in the said temple. In the year 2005, some objection was raised to perform
poojas after 6 p.m., on Sivarathiri day by some people belonging to the nearest
locality. Hence, a peace committee meeting was convened in the presence of the
Revenue Divisional Officer, Tirunelveli on 23.11.2005. In the said peace
committee meeting, a representative from the Archaeological Department was also
present. In the said peace committee meeting, the parties concerned agreed that
after getting permission from the Archaeological Department, poojas can be
performed after 6 p.m on Sivarathiri Day and was also agreed that on special
occasion like Sivarathiri day, poojas can be offered to the deity from 6 p.m to
6 a.m. on the next day. Pursuant to the permission given on the application
submitted by the first respondent, poojas were performed during night hours on
Sivarathiri day during the year 2006-2007, for two days.
c)In the year 2008-2009, the appellant granted permission only for one day
stating that poojas and prayer should be completed between sunrise and sunset.
Since the poojas start onlly at sunset on Sivarathiri day and extends to
sunrise, the first respondent expressed their difficulty in observing Hindu
religious practice performing poojas during night hours on sivarathiri day. Even
in the year 2009, the appellant by order dated 05.02.2009, granted permission
for only one day stating that the poojas should be completed between sunrise and
sunset. Hence, the petitioner has approached this Court by way of filing writ
petition in W.P.(MD)No.1317/2009 seeking direction to grant permission for
Sivarathiri day festival during night hours. This Court by order dated
25.03.2009, disposed of the said writ petition, directing the first respondent
to submit an application to the appellant Archaeological Department for
conducting Sivarathiri festival after sunset and before sunrise and directed the
appellant Archaeological Department to consider and dispose of the said
application.
d)Similarly, in the year 2010, the permission was refused by the appellant
herein for conducting poojas during night hours on Sivarathiri day. The first
respondent thereafter, filed another writ petition in W.P(MD)No.1405 of 2010 to
permit the first respondent to conduct Sivarathiri festival during night hours
on 12.02.2010.
e)The said prayer of the first respondent was resisted by the appellant
Department stating that the Kudaivarai Kovil/Two Rock Cut Temple, Thirumalapuram
with inscriptions in Varnachimalai, Tirumalapuram is a Centrally Protected
Monument of National Importance vide notification No.118, dated 09.06.1922 and
preserved and maintained by the Archaeological Survey of India, Thrissur Circle
under the provisions of the Act and Rules, 1958. As per the Rules of
Archaeological Survey of India [ASI], there are two types of monuments (a)
monuments under worship fully or partially and (b) monuments which are not under
worship. The Rock Cut Cave Temple, Tirumalapuram falls under the category of
monuments under worship partially. As per the Act and Rules, 1958 monuments are
kept open from sunrise to sunset.
f)The learned single Judge after considering the submissions of the
learned counsel appearing for the writ petitioner and the learned counsel for
the appellant, allowed the writ petition on a finding that Section 5(6) of the
Act, 1958 and Rules, 1958 enable the continuance of use of the protected
monuments for customary religious observations without any prejudice and the
said temple being a religious monument with the regular worship by public on the
basis of customs and usages, permission could be granted to celebrate the
festival in the night hours also. Aggrieved over the same, the present writ
appeal is filed by the Archaeological Department.
4.Learned counsel appearing for the appellant submitted that two rock cut
temple is a centrally protected monument of national importance, which is
preserved and maintained by the appellant Department.
5.He further submitted that under Rule 5(1) of the First Schedule
contained in Rules, 1959, the protected monuments specified in the First
Schedule shall remain open during night hours specified against them in the
schedule. If the specified monuments is not in the First Schedule, those
monuments shall remain open from sunrise to sunset. But the subject temple is
not specified in the First Schedule of the Rules. Therefore, as per Rule 5(1)
which shall remain open only from sunrise to sunset. Therefore, permission
cannot be granted to conduct sivarathiri against the provisions of the Act 1958
and Rules of 1959.
6.Learned counsel appearing for the appellant further submitted that the
object of the Act is to preserve national monuments under respective acts and to
ensure that all of them have to be properly maintained. Therefore, there cannot
be a permission against the object of the Act.
7.The first Respondent has not entered appearance even though served with
notice and the name of the first Respondent was printed in the cause list.
Having regard to the issue involved Mr.S.S.Sundar, learned counsel was appointed
as Amicus Curie. We have heard Mr.S.S.Sundar, the learned counsel.
8.Learned counsel for the first respondent submitted that Rule 5 has to be
read conjointly with Rule 7 of the Rules 1959. Rule 7 envisages that “no
protected monuments shall be used for the purpose of holding any meeting,
reception, party, conference or entertainment except in accordance with a
permission in writing granted by the Central Government”. But Sub Rule 2 to Rule
7 says that nothing in sub-rule “(1) shall apply to any meeting, reception,
party, conference or entertainment which is held in pursuance of a recognised
religious usage or custom. Hence, if any celebration, pursuant to a religious
usage or custom”. Hence, if there is any celebration, pursuant to a religious
usage and custom, there cannot be a bar to conduct the festival during night
hours. Moreover, Rule 5 only says that the protected monuments specified in the
First Schedule shall remain open from sunrise to sunset, it does not mean that
the festival cannot be performed during night hours.
9.We heard the learned counsel appearing for the respective parties and
perused the materials available on record.
10.Kudaivarai Kovil/Two Rock Cut Temple, Thirumalapuram with inscriptions
in Varnachimalai, Tirumalapuram is a Centrally Protected Monument of National
Importance vide notification No.118 dated 09.06.1922 preserved and maintained by
the Archaeological Survey of India, Thrissur Circle under the provisions of the
Act of 1958 and Rules 1959. As per the Rules of Archaeological Survey of India
[ASI], there are two types of monuments (a) monuments under worship fully or
partially and (b) monuments which are not under worship. The Rock Cut Cave
Temple, Tirumalapuram falls under the category of monuments under worship
partially. As per Rule 5 of the Act and Rules, 1958, the monuments specified in
the First Schedule of that Act shall remain open and close during the hours
specified against them in the said schedule. But so far as the Rock Cut Cave
Temple is concerned, it is not specified in the First Schedule. As per Rule 5(1)
of 1959, the temple shall remain open only from sunrise to sunset. Therefore,
now it is the submission of Archaeological Department that if the devotees are
permitted to perform poojas on Sivarathiri festival during night hours, it is
against the object of the Act and Rules. Therefore, the permission cannot be
granted.
11.But according to the learned counsel for the first respondent, Rule 5
has to be read conjointly along with Rule 7, Rule 7 permits celebration of
recognised religious usage or custom in protected monuments. Under such
circumstances, the word ‘shall’ found in Rule 5 would mean it remain open from
sunrise and sunset cannot be a bar to permit the devotees to celebrate the
festival during night hours. In this context, Rules 5 and 7 are extracted
hereunder:
“5.Monuments when kept open:-(1)The protected monuments specified in the
First Schedule shall remain open during the hours specified against them in that
Schedule; protected monuments which are not so specified and to which neither
rule 3 nor rule 4 applies shall remain open from sunrise to sunset.
Provided that an archaeological officer may, by notice to be exhibited in
a conspicuously part of the monument, direct that a protected monument or part
thereof shall be closed temporarily for such periods as may be specified in the
notice.
(2)Nothing in this rule or in rule 6 shall apply to an archaeological
officer, his agents, subordinates and workman or to any other Government servant
on duty at a protected monuments.
….
7.Holding of meetings etc. in monuments:(1)No protected monuments shall be
used for the purpose of holding any meeting, reception, party, conference or
entertainment except under and in accordance with a permission in writing
granted by the Central Government.
(2)Nothing in sub-rule (1) shall apply to any meeting, reception, party,
conference or entertainment which is held in pursuance of a recognised religious
usage or custom”.
12.Learned counsel for the first respondent further submitted that the
expression “shall remain open from sunrise to sunset” found in Rule 5 has to be
read conjointly with Rule 7, it shall give the meaning, the expression ‘shall’
found in Rule 5 cannot be a bar for celebrating a religious usage or custom in a
protected monument even during night hours. On the other hand, the learned
counsel appearing for the appellant submitted that the word ‘shall’ used in Rule
5 is mandatory in nature and therefore, the permission cannot be granted against
the statute. We are of the considered opinion that Rule has to be interpreted
only at the back ground of the object of the Act and the object of the Act is
only to maintain all the national monuments properly. When a strict duty is
imposed on the appellant/Archaeological Department, the interpretation made by
the learned counsel for the first respondent is accepted, it would be against
the object of the Act.
13.In this regard, useful reference can be placed to the judgment of the
Supreme Court in Rajeev Mankotia Vs.Secretary to the President of India and
others reported in AIR 1997 SC 2766. In paragraph 21, the Supreme Court has held
as follows:
“21.It is needless to mention that as soon as the Indian Institute of
Advance Studies vacates the building and hands it over to the Archaeological
Department, the Government should provide the necessary budget for effecting
repairs and restoring to the building its natural beauty and grandeur. It is
also necessary that its proper maintenance and preservation is undertaken as an
on-going process to protect the historical heritage and needed repairs are
effected from time to time. We avail this opportunity to direct the Government
of India to maintain all national monuments under the respective Acts referred
to above and to ensure that all of them are properly maintained so that the
cultural and historical heritage of India and the beauty and grandeur of the
monuments, sculptures secured through breathless and passionate labour
workmenship, craftsmanship and the skills of the Indian architects, artists and
masons is continued to be preserved. They are pride of Indians and places of
public visit. The tourist visitors should be properly regulated. Collections of
funds by way of admission/entrance fee should be conscientiously accounted for
and utilised for their upkeep and maintenance under respect regulations/rules.
Adequate annual budgetary provisions should be provided. In this behalf, it may
not be out of place to mention that if one goes to Williamsburg in United States
of America, the first settlement of the Britishers therein is preserved as a
tourist resort and though it is one in the row, its originality is maintained
and busying business activity goes on in and around the area attracting daily
hundreds of tourists from all over the world. Similar places of interest, though
of recent origin, need to be preserved and maintained as manifestation of our
cultural heritage or historical evidence. Similar efforts should also be made by
the Government of India, in particular the Tourism Department, to attract
foreign tourist and to give them good account of our past and glory of the
people of India as message to other countries and territories. Equally all the
State Governments would do well vis a vis monuments of State importance, though
given power under Entry 12, List II of the Seventh Schedule to the Constitution.
From this perspective, the petitioner has served a great cause of national
importance and we place on record his effort to have the Viceregal Lodge
preserved and maintained; but for his painstaking efforts, it would have been
desecrated into a Five Star Hotel and in no time” We, the people of India” would
have lost our ancient historical heritage”.
14.Therefore, in our considered opinion when an Act imposed a strict
compliance on the appellant Department to protect the national monuments, the
Court cannot grant a direction to the statutory authorities to act contrary to
law. In this context, useful reference can be made to the judgment of the
Supreme Court in Union of India and another Vs.Kirloskar Pnuematic Co., Ltd.,
reported in (1996) 4 SCC 453 wherein it has been held as follows:
“What is relevant herein is sub-section (4) of unamended Section 27 and
sub-section(3) of amended Section 27 of the Customs Act, 1962. According to
these sub-sections, a claim for refund or an order of refund can be made only in
accordance with the provisions of Section 27 which inter alia includes the
period of limitation mentioned therein. Even assuming that Section 27 did not
apply either o a suit filed by the importer or to a writ petition filed by him
and that in such cases the period of limitation would be three years, it is not
permissible for the High Court, even while acting under Section 226 of the
Constitution, to direct the authorities under the Act to act contrary to the
aforesaid statutory provision. The power conferred by Articles 226/227 is
designed to effectuate the law, to enforce the rule of law and to ensure that
the several authorities and organs of the State act in accordance with law. It
cannot be invoked for directing the authorities to act contrary to law. In
particular, the Customs authorities, who are the creatures of the Customs Act,
cannot be directed to ignore or act contrary to Section 27, whether before or
after the amendment. May be the High Court or a civil court is not bound by the
said provisions but the authorities under the Act are. Nor can there be any
question of the High Court clothing the authorities with its power under Article
226 or the power of a civil court. No such delegation or conferment can ever be
conceived. Hence, High Court’s direction that the authorities should not reject
the refund application on the ground of being time-barred, is not sustainable in
law”.
15.In Sree Arumugam Teacher Training College Vs. Thiruvalluvar University
reported in 2006 (3) MLJ 65, this Court in paragraph 18 of the order held as
follows:
“18.A writ of mandamus cannot be issued to a statutory authority to commit
a wrong in violation of the statutes. In a catena of judgments, the Supreme
Court has held that no writ can be issued to the authorities either to disobey
the law or to violate the law”.
16.Therefore, we are of the considered opinion that Rule 5(1) clearly
gives unambiguous meaning that the monuments which are not specified in First
Schedule shall remain open only from sunrise to sunset. If any direction is
issued to the statutory authorities to permit the devotees to celebrate the
festival during night hours, which will go against the statutory rules.
Therefore, such a direction cannot be granted. In our view, the judgment of the
learned single Judge is liable to be set aside and accordingly, the same is set
aside. Consequently, the writ appeal stands allowed. No costs.
To
2.The District Collector,
Tirunelveli District,
Tirunelveli.
3.The Tahsildar,
Sankarankoil Taluk,
Sankaratkoil.
4.The Inspector of Police,
Senthamaram Police Station,
Sankarankoil Taluk,
Sankarankoil.