{"id":149464,"date":"2011-01-31T00:00:00","date_gmt":"2011-01-30T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/c-n-eswara-iyer-vs-the-commissioner-on-31-january-2011"},"modified":"2014-05-11T16:40:57","modified_gmt":"2014-05-11T11:10:57","slug":"c-n-eswara-iyer-vs-the-commissioner-on-31-january-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/c-n-eswara-iyer-vs-the-commissioner-on-31-january-2011","title":{"rendered":"C.N.Eswara Iyer vs The Commissioner on 31 January, 2011"},"content":{"rendered":"
Madras High Court<\/div>\n
C.N.Eswara Iyer vs The Commissioner on 31 January, 2011<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 31\/01\/2011\n\nCORAM\nTHE HONOURABLE MR.JUSTICE K.K.SASIDHARAN\n\nW.P.(MD)No.528 of 2011\nand\nM.P.(MD)Nos.2 and 3 of 2011\n\n1.C.N.Eswara Iyer\n2.R.Subramania Iyer\n3.S.Swaminatha Iyer\n4.P.A.Sankaran Iyer\n5.S.Gnamani Iyer\n6.A.Cellapa Iyer\n7.M.Kannan Iyer\t\t\t\t\t... Petitioners\n\nVs.\n\n1.The Commissioner,\n   Hindu Religious and Charitable\n   Endowment Board,\n   Uthamar Ghandhi Road,\n   Nungampakkam,\n   Chennai.\n\n2.The Executive Officer\/Joint Commissioner,\n   Arulmighu Subramania Swamy Thirukkoil,\n   Tiruchendur.\t\t\t\t\t... Respondents\n\nPrayer\n\nWrit Petition is filed under Article 226 of the Constitution of India\npraying for the issue of a Writ of Certiorari, to call for the records of the\nfirst respondent in his proceedings Mu.Mu.No.70805\/2009 Z2, dated 13.03.2010 and\nthe consequential order passed by the second respondent in his proceedings\nNa.Ka.No.8004\/2009 A6, dated 31.12.2010 and quash the same as illegal and\nenforceable.\n\n!For Petitioners\t... Mr.S.Meenakshi Sundaram\n^For Respondent No.1\t... Mr.S.C.Herold Singh\n\t\t\t    Government Advocate\nFor Respondent No.2\t... Mr.R.Thiagarajan\n\t\t\t    Senior Counsel\n\t\t\t    For Mr.PT.S.Narendravasan\n********\n:ORDER\n<\/pre>\n
******
\n\t\tChallenge in this Writ Petition is to the proceedings of the first
\nrespondent dated 13.03.2010 and the consequential proceedings issued by the
\nsecond respondent dated 31.12.2010, whereby and whereunder the petitioners were
\ndirected to hand over the six keys of the temple jewellery room.\n<\/p>\n
THE FACTS IN OUTLINE:\n<\/p>\n
\t\t2. The petitioners are the members of Thiriswanthira Sthalathar.
\nThey are also called as Mukkani Brahmins. They are functioning as the
\nSthalathars in Sri Subramania Swamy Thirukkovil at Thiruchendur. They are
\nservice holders entitled to various services other than performance of pooja.
\nWhile founding the place at Thiruchendur, Lord Subramania set up 2000 families
\nto attend the services and accordingly, the petitioners have been performing
\ntheir services. The petitioners are performing the services in Kaiyatchi,
\nKattiam, Athyanam, Veda Parayanam, Panchangam and Asirvadam.\n<\/p>\n
\t\t3. The jewels of the deity are kept in the Karuvulam. The jewels for
\nadorning the deity during festival days are kept in Peria Seppu. Goldchapram and
\nsilver chapram are kept in vahana room. Parivattams for the deity are kept in
\nPattupetti. The Sthalathars are responsible for the jewellery and the keys were
\nin the possession of their predecessors-in-interest and at present, the
\npetitioners are doing the said service.\n<\/p>\n
\t\t4. The Karuvulam has got two doors. The outer door has got one lock
\nand insofar as the inner door is concerned, there are three locks.  The keys of
\nthe four locks are in the custody of four Padikarargal. They would keep the keys
\nin turn. There are two locks for Periaseppu. The keys of those two locks are in
\nthe custody of the fourth Padikarar. There is only one lock for Pattupetti and
\nthe key of the said lock is in the custody of the first Padikarargal. The keys
\nwere never in the custody of the Executive Officer. The Vahana Arai has got four
\nlocks and the keys of those four locks are in the custody of four Padikarargal.\n<\/p>\n
\t\t5. The Sthalathars have been doing the service and for keeping
\ncustody of the keys, they would get pongal, sweet pongal, puliyotharai and
\ncoconut surul from the temple. The petitioners used to receive Sambavanai for
\nadorning the deity with special angi.\n<\/p>\n
\t\t6. The Sthalathars are given two keys of the Karuvulam and vahana
\nroom and the other two keys are with the Clerks of the temple. The keys of the
\nlocks are put in a bag and after sealing, it would be given to the petitioners.
\nSimilarly, after verifying the seals, the bag containing the keys would be
\nopened. The Executive Officer has taken a sum of Rs.1,000\/- from the petitioners
\nas  security for keeping the keys. The temple has got a list of Padikarargal.
\nDuring the time of taking the jewels, the Sthalathars, Karuvula Kanakkar, Pothi,
\nBhatter, Mahamandapam Para, Maniakarar, Watchman at Moolasthanam and Shanmugar
\nSannadhi and the Peishkar of the temple would be present.  They would make
\nentries in the Register and only after signing the register, jewellery would be
\ntaken out. Similarly, the jewellery would be deposited after making necessary
\nentries.\n<\/p>\n
\t\t7. The person, who is in-charge of the double lock room in the
\nThiriswanthira Sthalathar, is called as Kaiyatchi. The present petitioners are
\nthe Kaiyatchis and they have been doing this work from 2008 onwards.\n<\/p>\n
\t\t8. The petitioners were doing their religious service and the said
\ncustom has been in practice from time immemorial.\n<\/p>\n
\t\t9. While the matters stood thus, the second respondent has sent a
\ncommunication dated 31.12.2010, directing the petitioners to hand over the six
\nkeys available with them. The said communication contains a reference about the
\nproceedings dated 13.03.2010 on the file of the first respondent. However, the
\nproceedings dated 13.03.2010 was not given to the petitioners. The second
\nrespondent issued the impugned proceedings, calling upon the petitioners to hand
\nover the keys. Feeling aggrieved by the proceedings dated 13.03.2010 and the
\nconsequential order passed by the second respondent dated 31.12.2010, the
\npetitioners are before this Court.\n<\/p>\n
THE CASE OF THE DEPARTMENT:\n<\/p>\n
\t\t10. The second respondent has filed a counter. The material portion
\nof which reads thus:\n<\/p>\n
\t\t(a) The keys relating to the outer doors and inner doors were
\noriginally in the custody of the Sthalathars. There was a complaint of
\nmisappropriation against the Sthalathars, who were in-charge of the Treasure
\nduring the year 1966. Those four Sthalathars have misappropriated the jewels and
\nas such, action was taken against them.\n<\/p>\n
\t\t(b) Subsequently, in the year 1967, two out of the four keys were
\ntaken over by the temple authorities and the other keys meant for outer door and
\ninner door of the Karuvulam continue to be with the Sthalathar. For every day
\nuse, the jewels are taken from the Karuvulam in the presence of Karuvula
\nKanakkar, Pothi, Bhattar, Maniakar, Sthalathars and the watchman of Moolavar and
\nShanmugar, after making necessary entries in the register. Similarly, at the end
\nof the day, prior to the rakala abishekam, the jewels would again be replaced in
\nthe karuvulam in the presence of the Karuvula Kanakkar and others. The
\npetitioners were keeping the keys from  the year 2008 onwards.\n<\/p>\n
\t\t(c) There were complaints about the Sthalathars with respect to
\nmisappropriation and mishandling of temple jewels.\n<\/p>\n
\t\t(d) The temple authorities have earlier filed a suit in O.S.No.113
\nof 1969 before the Sub Court, Tuticorin against the Sthalathars and the said
\nsuit was decreed as per judgment and decree dated 02.08.1977. The decree was
\nconfirmed in appeal as per judgment and decree dated 03.07.1986 in A.S.No.500 of
\n1980.\n<\/p>\n
\t\t(e) The activities of the petitioners were not conducive for a
\nproper administration of the temple and its properties. Therefore, the Board of
\nTrustees passed a resolution on 28.11.2009 resolving to recover the keys of
\nKaruvulam from the Sthalathars. The said resolution was forwarded to the first
\nrespondent for appropriate action. The first respondent, after considering the
\nreport submitted by the Joint Commissioner, approved the resolution and it was
\nresolved to authorize the Joint Commissioner to break open the Karuvulam in the
\npresence of officers, in case the Sthalathars failed to hand over the keys to
\nthe temple administration. It was only pursuant to the said proceedings dated
\n13.03.2010, the second respondent has issued the impugned communication dated
\n31.12.2010.\n<\/p>\n
\t\t(f) The petitioners are not performing any essential religious
\nfunctions or ceremony relating to the religious affairs of the temple.
\nTherefore, their claim that the service regarding the safe custody of the jewels
\nwas essentially a religious practice appears to be incorrect.\n<\/p>\n
THE ARGUMENTS:\n<\/p>\n
\t\t11. The learned counsel for the petitioners contended thus:\n<\/p>\n
\t\t(a) There was a Scheme decree dated 30.09.1930 in O.S.No.4 of 1929
\non the file of the learned District Judge, Tirunelveli. The decree contains a
\nclear statement indicating that the jewels and other valuables of the
\nDevasthanam shall be kept in the Karuvulam of the Devasthanam under lock and key
\nand the key shall be in the custody of the Sthalathars. Therefore, the first
\nrespondent was not justified in passing the impugned order without modifying the
\nScheme.\n<\/p>\n
\t\t(b) It is not possible for the petitioners to open the jewellery
\nroom, unless the other key is made available by the Executive Officer.
\nTherefore, it cannot be said that the petitioners have indulged in an act of
\nmisappropriation with respect to the temple jewellery.\n<\/p>\n
\t\t(c) The petitioners were doing various religious practices and the
\nsafe custody of the temple jewellery is part of their religious practice and as
\nsuch, it was not open to the respondents to take away the said right without the
\nauthority of law.\n<\/p>\n
\t\t(d) Rule 10 of the Religious Institutions Custody of Jewels,
\nValuables and Documents and Disposal Rules gives an indication that the right of
\npossession declared by a scheme or a decree has to be given due weight. The
\ncivil Court has already framed a Scheme and the said Scheme provides for keeping
\nthe key with the Sthalathars. Therefore, the order passed by the first
\nrespondent without modifying the Scheme, is liable to be set aside.\n<\/p>\n
\t\t12. The learned Senior Counsel for the second respondent would
\nsubmit thus:\n<\/p>\n
\t\t(a) The Scheme has already been cancelled by the Commissioner, Hindu
\nReligious and Charitable Endowments Department, as per notification in
\nG.O.Ms.No.4448. P.H., dated 12.12.1938. Therefore, the Scheme decree is no
\nlonger in force.\n<\/p>\n
\t\t(b) Section 42 of the Hindu Religious and Charitable Endowments Act,
\n1959 [hereinafter referred to as “the Act”] provides that no office holder or
\nservant of a religious institution or other person shall have the right to
\npossess the jewels, unless there is a direction by the Commissioner. Therefore,
\nthe petitioners have no right to retain the jewellery and the keys of the
\njewellery room.\n<\/p>\n
\t\t(c) The Commissioner, Hindu Religious and Charitable Endowments
\nDepartment has already issued the proceedings dated 08.01.1953, whereby and
\nwhereunder the custody of the jewellery was entrusted to the Executive Officer
\nof the temple.\n<\/p>\n
\t\t(d) The petitioners have no connection with the affairs of the
\ntemple and as such, they cannot be heard to say that they should be permitted to
\nretain the keys of the jewellery room.\n<\/p>\n
\t\t(e) The proceedings of the Commissioner cancelling the Scheme has
\nnot been challenged and as such, no reliance could be placed on the said Scheme.\n<\/p>\n
ANALYSIS:\n<\/p>\n
\t\t13. The only issue, which arises for consideration in the Writ
\nPetition, is as to whether the first respondent was justified in issuing the
\nproceedings dated 13.03.2010, directing the petitioners to hand over the key and
\nthe consequential proceedings issued by the second respondent dated 31.12.2010
\nto implement the said order.\n<\/p>\n
\t\t14. The petitioners have claimed the custody of the jewellery room
\nand the keys on the basis of the custom. According to the petitioners, they have
\nbeen functioning as Sthalathars and the keys of the temple jewellery box has
\nbeen in the possession of their predecessors-in-interest and the said right
\ndevolved on them. In short, the petitioners have claimed the possession of keys
\nas a matter of right. They have placed reliance on the Scheme decree in O.S.No.4
\nof 1929, dated 30.09.1930 on the file of the learned District Judge,
\nTirunelveli. The Scheme decree provides that the outer lock of Karuvulam and the
\nkeys of the Karuvulam shall be in the custody of the Sthalathars and it should
\nbe securely wrapped and sealed by the trustee or his nominee and the Karuvulam
\nwill not be shut or opened without due notice to the trustee or his agent or
\nnominee. Therefore, the decree contains an indication that the keys would be
\nwith the Sthalathars.\n<\/p>\n
\t\t15. The question is whether keeping the keys by the petitioners
\nwould amount to an essential religious practice.\n<\/p>\n
\t\t16. Section 65 of the Act deals with the power of the Commissioner
\nto settle the Schemes. Section 65(4)(a) of the Act gives power to the
\nCommissioner to modify the Scheme. The said provision reads thus:-
\n\t“65(4)(a).- The Commissioner may, at any time after consulting the
\ntrustee, by order, modify or cancel any scheme in respect of a math or a
\nspecific endowment attached to a math and in force and settled under sub-section
\n(1) or any scheme in force settled or modified by the  Board under the Tamil
\nNadu Hindu Religious Endowments Act, 1926 ([Tamil Nadu] Act II of 1927), or
\ndeemed to have been settled under that Act or any scheme in force settled or
\nmodified by the Commissioner under this Act or any Scheme in force settled or
\nmodified by the Court in a suit under sub-section (1) of section 70 or on an
\nappeal under sub-section (2) of that section or any such scheme in force deemed
\nto have been settled or modified by the Court under clause (a) of sub-section
\n(2) of section 118:\n<\/p>\n
\tProvided that such cancellation or modification of a scheme in force
\nsettled or modified by the Court in a suit under sub-section (1) of section 70
\nor of an appeal under sub-section (2) of that section or of a scheme in force
\ndeemed to have been settled or modified by the Court under clause (a) of sub-
\nsection (2) of section 118 shall be made only subject to such conditions and
\nrestrictions as may be prescribed.\n<\/p>\n
\t(b) If the Commissioner is satisfied that any such scheme referred to in
\nclause (a) is  inconsistent with this Act and the rules made thereunder, he may,
\nat any time, modify it in such manner as may be necessary to bring it into
\nconformity with the provision of this Act and the rules made thereunder.”\n<\/p>\n
\t\t17. The Scheme framed by the Court as per judgment and decree dated
\n30.09.1930 in O.S.No.4 of 1929 has already been cancelled by the Commissioner,
\nas per notification in G.O.Ms.No.4448. P.H., dated 12.12.1938. The petitioners
\nhave not challenged the said order in the manner known to law.\n<\/p>\n
\t\t18. There is no dispute that the power to modify or cancel the
\nScheme can be exercised by the Commissioner suo motu. The Commissioner has taken
\nsuo motu action and accordingly, the Scheme decree was cancelled. Without
\nchallenging the said order, the petitioners cannot be heard to say that they
\nshould be permitted to get the key on the basis of the decree in O.S.No.4 of
\n1929. The proceedings of the Commissioner, Hindu Religious and Charitable
\nEndowments Department, dated 08.01.1953 and the appendix to the said proceedings
\ncontains indication about the powers of the Executive Officer. The petitioners
\nhave not produced materials to show that keeping the keys of the jewellery room
\nwas in the nature of an essential religious practice. The affidavit filed in
\nsupport of the Writ Petition does not contain any such material to arrive at a
\nconclusion that it was only as part of the essential religious practice, they
\nhad been keeping the keys of the jewellery room.\n<\/p>\n
\t\t19. Section 42 of the Act deals with the custody of the temple
\njewellery. The said provision reads thus:\n<\/p>\n
\t“42. Office-holders and servants of religious institutions not to be in
\npossession of jewels, etc., except under conditions.-
\n\tNotwithstanding anything contained in any scheme settled or deemed to have
\nbeen settled under this Act or in any decree or order of a Court or any custom
\nor usage to the contrary, no office-holder or servant of a religious institution
\nor other person shall have the right to be in possession of the jewels or other
\nvaluables belonging to the religious institution except under such conditions
\nand safeguards as the Commissioner may, by general or special order, direct.”\n<\/p>\n
\t\t20. Section 42 of the Act provides that no office holder or servant
\nof a religious institution shall have the right to be in possession of the
\njewels or  other valuables belonging to the religious institution,
\nnotwithstanding anything contained in any scheme settled or deemed to have been
\nsettled under the Hindu Religious and Charitable Endowments Act or in any decree
\nor order of a Court or any custom or usage to the contrary.  Therefore, any
\narrangement or Scheme regarding the custody of the jewels, insofar as it is
\ninconsistent with section 42 has to be ignored. The petitioners have not
\nchallenged the validity of Section 42 of the Act. Therefore,it is not open to
\nthe petitioners to claim custody of the jewels as a matter of right
\nnotwithstanding Section 42 of the Act.\n<\/p>\n
\t\t21. Rule 10 of the Religious Institutions Custody of Jewels,
\nValuables and Documents and Disposal Rules has to be read along with Section 42
\nof the Act. A conjoint reading of Section 42 and Rule 10 would give a clear
\nindication that the keys of the jewellery box have to be in the custody of the
\ndepartment at all point of time.\n<\/p>\n
\t\t22. The second respondent, in his counter-affidavit and more
\nparticularly, in paragraph No.5, referred about the misappropriation of jewels
\nby the four Sthalathars. In fact, the suit itself was instituted by the temple
\nas against the Sthalathars in O.S.No.113 of 1969. The said suit was decreed and
\nthe judgment and decree of the trial Court was confirmed in  appeal. The
\npetitioners were not appointed to any position in the temple. When there was a
\ncomplaint preferred against the Sthalathars, with regard to the misappropriation
\nof jewels, it cannot be said that the first respondent was not justified in
\npassing the impugned order directing the Sthalathars to hand over the keys of
\nthe jewellery room.  The petitioners have no case that the respondents have
\ninterfered in their performance of religious services. The impugned order was
\npertaining to the keys of the jewellery room. It has nothing to do with any
\nother services performed by the petitioners. In view of Section 42 of the Act
\nand the cancellation of the Scheme decree by the Commissioner, it was not open
\nto the petitioners to claim that the keys of jewellery box should be with them
\nat all point of time.\n<\/p>\n
\t\t23. The petitioners claim protection under Articles 25 and 26 of the
\nConstitution of India to retain their right to keep the keys of the jewellery
\nroom.\n<\/p>\n
\t\t24. There is no dispute that the Constitution protects such
\npractices which are essentially in the nature of religious practices. In case
\nthose practices are found to be essential and integral parts of their religion,
\nthe Constitution protection would extend even to those practices. Therefore, the
\nterm “integral part of the religion” assumes significance. There should be
\nmaterials placed before the Court to demonstrate that a particular practice has
\nattained the character of an essential religious practice.\n<\/p>\n
DISPOSITION:\n<\/p>\n
\t\t25. The materials produced by the petitioners does not show that the
\npractice of keeping the keys of the jewellery room was in the nature of an
\nessential religious practice or ceremony. Therefore, I do not find any merit in
\nthe contentions raised by the petitioners.\n<\/p>\n
\t\t26. In the upshot, I dismiss the Writ Petition. Consequently, the
\nconnected miscellaneous petitions are also dismissed. No costs.\n<\/p>\n
SML<\/p>\n
To\n<\/p>\n
1.The Commissioner,
\n   Hindu Religious and Charitable
\n   Endowment Board,
\n   Uthamar Ghandhi Road,
\n   Nungampakkam,
\n   Chennai.\n<\/p>\n
2.The Executive Officer\/Joint Commissioner,
\n   Arulmighu Subramania Swamy Thirukkoil,
\n   Tiruchendur.\t\t<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court C.N.Eswara Iyer vs The Commissioner on 31 January, 2011 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, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-149464","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nC.N.Eswara Iyer vs The Commissioner on 31 January, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/c-n-eswara-iyer-vs-the-commissioner-on-31-january-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"C.N.Eswara Iyer vs The Commissioner on 31 January, 2011 - 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