{"id":211509,"date":"2010-12-13T00:00:00","date_gmt":"2010-12-12T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-superintending-vs-kudaivarai-kovil-thirumalpuram-on-13-december-2010"},"modified":"2016-04-30T11:59:00","modified_gmt":"2016-04-30T06:29:00","slug":"the-superintending-vs-kudaivarai-kovil-thirumalpuram-on-13-december-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-superintending-vs-kudaivarai-kovil-thirumalpuram-on-13-december-2010","title":{"rendered":"The Superintending … vs Kudaivarai Kovil Thirumalpuram on 13 December, 2010"},"content":{"rendered":"
Madras High Court<\/div>\n
The Superintending … vs Kudaivarai Kovil Thirumalpuram on 13 December, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 13\/12\/2010\n\nCORAM\nTHE HONOURABLE MRS.JUSTICE R.BANUMATHI\nand\nTHE HONOURABLE MR.JUSTICE R.SUBBIAH\n\nW.A.(MD) No.705  of 2010\n\nThe Superintending Archaeologist\nArchaeological Survey of India,\nFF, 19-A-KSHB Flats,\nPullazhy Post,\nThrissur,\nKerala State.\t\t\t\t\t...   Appellant\n\nVs.\n\n1.Kudaivarai Kovil Thirumalpuram\n  rep. by its President\n  Shri.S.Mahendran.\n\n2.The District Collector,\n  Tirunelveli District,\n  Tirunelveli.\n\n3.The Tahsildar,\n  Sankarankoil Taluk,\n  Sankaratkoil.\n\n4.The Inspector of Police,\n  Senthamaram Police Station,\n  Sankarankoil Taluk,\n  Sankarankoil.\t\t\t\t\t...  Respondents.\n\t\nPRAYER\n\nWrit Appeal is filed under Clause 15 of the Letters Patent against the\norder dated 11.02.2010 in W.P.(MD) No.1405 of 2010 on the file of this Court.\n\n!For Appellant\t     ... Mr.S.M.Deenadayalan\n^For Respondents 2-4 ... Mr.R.Janakiramulu,\n\t\t         Special Government Pleader.\nFor 1st Respondent   ... Mr.S.S.Sundar\n\t\t         Amicus Curie\n\t\t\t\t\t\t\n:JUDGMENT\n<\/pre>\n
R.SUBBIAH,J.\n<\/p>\n
\tThe question that has fallen for consideration in this appeal is whether
\nthe restriction imposed by the Archaeological Department for the celebration of
\n“Mahasivarathiri” in Kudaivarai Kovil\/Two Rock Cut Temple, Thirumalpuram, to the
\npublic from sunrise to sunset is legally sustainable.\n<\/p>\n
\t 2.This Writ Appeal arises out of the order made in W.P.(MD) No.1405 of
\n2009, dated 11.02.2010 whereby the learned single Judge permitted the petitioner
\nto celebrate  “Mahasivarathiri” during night hours and directed the Deputy
\nSuperintendent of Police, Puliyangudi to provide necessary police protection for
\nthe smooth conduct of the festival.\n<\/p>\n
\t 3.Brief facts which are necessary to decide the issue involved in this
\nappeal are as follows:\n<\/p>\n
\ta)Though originally regular poojas were being offered by the devotees, it
\nfell into disuse after the Kudaivarai Kovil\/Two Rock Cut Temple, Thirumalpuram
\nwas declared to be an ancient monument in the year 1922 under the Ancient
\nMonuments Preservation Act, 1904. At present, the said temple is under the
\ncontrol of the Archaeological Survey of India and governed by the provisions of
\nthe new Act viz., The Ancient Monuments and Archaeological Sites and Remains
\nAct, 1958 (hereinafter called as ‘the Act and Rules, 1958) and the Rules of 1959
\nmade thereunder.\n<\/p>\n
\tb)From the year 1980 onwards by the residents of that locality and the
\ndevotees, Thirukarthigai festival and Sivarathiri festival are being celebrated
\nin the said temple.  In the year 2005, some objection was raised to perform
\npoojas after 6 p.m., on Sivarathiri day by some people belonging to the nearest
\nlocality. Hence, a peace committee meeting was convened in the presence of the
\nRevenue Divisional Officer, Tirunelveli on 23.11.2005. In the said peace
\ncommittee meeting, a representative from the Archaeological Department was also
\npresent. In the said peace committee meeting, the parties concerned agreed that
\nafter getting permission from the Archaeological Department,  poojas can be
\nperformed after 6 p.m on Sivarathiri Day and was also agreed that on special
\noccasion like Sivarathiri day, poojas can be offered to the deity from 6 p.m to
\n6 a.m. on the next day.  Pursuant to the permission given on the application
\nsubmitted by the first respondent, poojas were performed during night hours on
\nSivarathiri day during the year 2006-2007, for two days.\n<\/p>\n
\tc)In the year 2008-2009, the appellant granted permission only for one day
\nstating that poojas and prayer should be completed between sunrise and sunset.
\nSince the poojas start onlly at sunset on Sivarathiri day and extends to
\nsunrise, the first respondent expressed their difficulty in observing Hindu
\nreligious practice performing poojas during night hours on sivarathiri day. Even
\nin the year 2009, the appellant by order dated 05.02.2009, granted permission
\nfor only one day stating that the poojas should be completed between sunrise and
\nsunset. Hence, the petitioner has approached this Court by way of filing writ
\npetition in W.P.(MD)No.1317\/2009 seeking direction to grant permission for
\nSivarathiri day festival during night hours. This Court by order dated
\n25.03.2009, disposed of the said writ petition, directing the first respondent
\nto submit an application to the appellant Archaeological Department for
\nconducting Sivarathiri festival after sunset and before sunrise and directed the
\nappellant Archaeological Department to consider and dispose of the said
\napplication.\n<\/p>\n
\td)Similarly, in the year 2010, the permission was refused by the appellant
\nherein for conducting poojas during night hours on Sivarathiri day. The first
\nrespondent thereafter, filed another writ petition in W.P(MD)No.1405 of 2010 to
\npermit the first respondent to conduct Sivarathiri festival during night hours
\non 12.02.2010.\n<\/p>\n
\te)The said prayer of the first respondent was resisted by the appellant
\nDepartment stating that the Kudaivarai Kovil\/Two Rock Cut Temple, Thirumalapuram
\nwith inscriptions in Varnachimalai, Tirumalapuram is a Centrally Protected
\nMonument of National Importance vide notification No.118, dated 09.06.1922 and
\npreserved and maintained by the Archaeological Survey of India, Thrissur Circle
\nunder the provisions of the Act and Rules, 1958. As per the Rules of
\nArchaeological Survey of India [ASI], there are two types of monuments (a)
\nmonuments under worship fully or partially and (b) monuments which are not under
\nworship. The Rock Cut Cave Temple, Tirumalapuram falls under the category of
\nmonuments under worship partially. As per the Act and Rules, 1958 monuments are
\nkept open from sunrise to sunset.\n<\/p>\n
\tf)The learned single Judge after considering the submissions of the
\nlearned counsel appearing for the writ petitioner and the learned counsel for
\nthe appellant, allowed the writ petition on a finding that Section 5(6) of the
\nAct, 1958 and Rules, 1958 enable the continuance of use of the protected
\nmonuments for customary religious observations without any prejudice and the
\nsaid temple being a religious monument with the regular worship by public on the
\nbasis of customs and usages, permission could be granted to celebrate the
\nfestival in the night hours also. Aggrieved over the same, the present writ
\nappeal is filed by the Archaeological Department.\n<\/p>\n
\t4.Learned counsel appearing for the appellant submitted that two rock cut
\ntemple is a centrally protected monument of national importance, which is
\npreserved and maintained by the appellant Department.\n<\/p>\n
\t5.He further submitted that under Rule 5(1) of the  First Schedule
\ncontained in Rules, 1959, the protected monuments specified in the First
\nSchedule shall remain open during night hours specified against them in the
\nschedule. If the specified monuments is not in the First Schedule, those
\nmonuments shall remain open from sunrise to sunset. But the subject temple is
\nnot specified in the First Schedule of the Rules. Therefore, as per Rule 5(1)
\nwhich shall remain open only from sunrise to sunset. Therefore, permission
\ncannot be granted to conduct sivarathiri against the provisions of the Act 1958
\nand Rules of 1959.\n<\/p>\n
\t6.Learned counsel appearing for the appellant further submitted that the
\nobject of the Act is to preserve national monuments under respective acts and to
\nensure that all of them have to be properly maintained. Therefore, there cannot
\nbe a permission against the object of the Act.\n<\/p>\n
\t7.The first Respondent has not entered appearance even though served with
\nnotice and the name of the first Respondent was printed in the cause list.
\nHaving regard to the issue involved Mr.S.S.Sundar, learned counsel was appointed
\nas Amicus Curie.  We have heard Mr.S.S.Sundar, the learned counsel.\n<\/p>\n
\t8.Learned counsel for the first respondent submitted that Rule 5 has to be
\nread conjointly with Rule 7 of the Rules 1959. Rule 7 envisages that “no
\nprotected monuments shall be used for the purpose of holding any meeting,
\nreception, party, conference or entertainment except in accordance with a
\npermission in writing granted by the Central Government”. But Sub Rule 2 to Rule
\n7 says that nothing in sub-rule “(1) shall apply to any meeting, reception,
\nparty, conference or entertainment which is held in pursuance of a recognised
\nreligious usage or custom. Hence, if any celebration, pursuant to a religious
\nusage or custom”. Hence, if there is any celebration, pursuant to a religious
\nusage and custom, there cannot be a bar to conduct the festival during night
\nhours. Moreover, Rule 5 only says that the protected monuments specified in the
\nFirst Schedule shall remain open from sunrise to sunset, it does not mean that
\nthe festival cannot be performed during night hours.\n<\/p>\n
\t9.We heard the learned counsel appearing for the respective parties and
\nperused the materials available on record.\n<\/p>\n
\t10.Kudaivarai Kovil\/Two Rock Cut Temple, Thirumalapuram with inscriptions
\nin Varnachimalai, Tirumalapuram is a Centrally Protected Monument of National
\nImportance vide notification No.118 dated 09.06.1922 preserved and maintained by
\nthe Archaeological Survey of India, Thrissur Circle under the provisions of the
\nAct of 1958 and Rules 1959.  As per the Rules of Archaeological Survey of India
\n[ASI], there are two types of monuments (a) monuments under worship fully or
\npartially and (b) monuments which are not under worship.  The Rock Cut Cave
\nTemple, Tirumalapuram falls under the category of monuments under worship
\npartially.  As per Rule 5 of the Act and Rules, 1958, the monuments specified in
\nthe First Schedule of that Act shall remain open and close during the hours
\nspecified against them in the said schedule. But so far as the Rock Cut Cave
\nTemple is concerned, it is not specified in the First Schedule. As per Rule 5(1)
\nof 1959, the temple shall remain open only from sunrise to sunset. Therefore,
\nnow it is the submission of Archaeological Department that if the devotees are
\npermitted to perform poojas on Sivarathiri festival during night hours, it is
\nagainst the object of the Act and Rules. Therefore, the permission cannot be
\ngranted.\n<\/p>\n
\t11.But according to the learned counsel for the first respondent, Rule 5
\nhas to be read conjointly along with Rule 7, Rule 7 permits celebration of
\nrecognised religious usage or custom in protected monuments. Under such
\ncircumstances, the word ‘shall’ found in Rule 5 would mean it remain  open from
\nsunrise and sunset cannot be a bar to permit the devotees to celebrate the
\nfestival during night hours. In this context,  Rules 5 and 7 are extracted
\nhereunder:\n<\/p>\n
\t“5.Monuments when kept open:-(1)The protected monuments specified in the
\nFirst Schedule shall remain open during the hours specified against them in that
\nSchedule; protected monuments which are not so specified and to which neither
\nrule 3 nor rule 4 applies shall remain open from sunrise to sunset.
\n\tProvided that an archaeological officer may, by notice to be exhibited in
\na conspicuously part of the monument, direct that a protected monument or part
\nthereof shall be closed temporarily for such periods as may be specified in the
\nnotice.\n<\/p>\n
\t(2)Nothing in this rule or in rule 6 shall apply to an archaeological
\nofficer, his agents, subordinates and workman or to any other Government servant
\non duty at a protected monuments.\n<\/p>\n
\t….\n<\/p>\n
\t7.Holding of meetings etc. in monuments:(1)No protected monuments shall be
\nused for the purpose of holding any meeting, reception, party, conference or
\nentertainment except under and in accordance with a permission in writing
\ngranted by the Central Government.\n<\/p>\n
\t(2)Nothing in sub-rule (1) shall apply to any meeting, reception, party,
\nconference or entertainment which is held in pursuance of a recognised religious
\nusage or custom”.\n<\/p>\n
\t12.Learned counsel for the first respondent further submitted that the
\nexpression “shall remain open from sunrise to sunset” found in Rule 5 has to be
\nread conjointly with Rule 7, it shall give the meaning, the expression ‘shall’
\nfound in Rule 5 cannot be a bar for celebrating a religious usage or custom in a
\nprotected monument even during night hours. On the other hand, the learned
\ncounsel appearing for the appellant submitted that the word ‘shall’ used in Rule
\n5 is mandatory in nature and therefore, the permission cannot be granted against
\nthe statute. We are of the considered opinion that Rule has to be interpreted
\nonly at the back ground of the object of the Act and the object of the Act is
\nonly to maintain all the national monuments properly. When a strict duty is
\nimposed on the appellant\/Archaeological Department, the interpretation made by
\nthe learned counsel for the first respondent is accepted, it would be  against
\nthe object of the Act.\n<\/p>\n
\t13.In this regard, useful reference can be placed to the judgment of the
\nSupreme Court in Rajeev Mankotia Vs.Secretary to the President of India and
\nothers reported in AIR 1997 SC 2766. In paragraph 21, the Supreme Court has held
\nas follows:\n<\/p>\n
\t“21.It is needless to mention that as soon as the Indian Institute of
\nAdvance Studies vacates the building and hands it over to the Archaeological
\nDepartment, the Government should provide the necessary budget for effecting
\nrepairs and restoring to the building its natural beauty and grandeur. It is
\nalso necessary that its proper maintenance and preservation is undertaken as an
\non-going process to protect the historical heritage and needed repairs are
\neffected from time to time. We avail this opportunity to direct the Government
\nof India to maintain all national monuments under the respective Acts referred
\nto above and to ensure that all of them are properly maintained so that the
\ncultural and historical heritage of India and the beauty and grandeur of the
\nmonuments, sculptures secured through breathless and passionate labour
\nworkmenship, craftsmanship and the skills of the Indian architects, artists and
\nmasons is continued to be preserved. They are pride of Indians and places of
\npublic visit. The tourist visitors should be properly regulated. Collections of
\nfunds by way of admission\/entrance fee should be conscientiously accounted for
\nand utilised for their upkeep and maintenance under respect regulations\/rules.
\nAdequate annual budgetary provisions should be provided.  In this behalf, it may
\nnot be out of place to mention that if one goes to Williamsburg in United States
\nof America, the first settlement of the Britishers therein is preserved as a
\ntourist resort and though it is one in the row, its originality is maintained
\nand busying business activity goes on in and around the area attracting daily
\nhundreds of tourists from all over the world. Similar places of interest, though
\nof recent origin, need to be preserved and maintained as manifestation of our
\ncultural heritage or historical evidence. Similar efforts should also be made by
\nthe Government of India, in particular the Tourism Department, to attract
\nforeign tourist and to give them good account of our past and glory of the
\npeople of India as message to other countries and territories. Equally all the
\nState Governments would do well vis a vis monuments of State importance, though
\ngiven power under Entry 12, List II of the Seventh Schedule to the Constitution.
\nFrom this perspective, the petitioner has served a great cause of national
\nimportance and we place on record his effort to have the Viceregal Lodge
\npreserved and maintained; but for his painstaking efforts, it would have been
\ndesecrated into a Five Star Hotel and in no time” We, the people of India” would
\nhave lost our ancient historical heritage”.\n<\/p>\n
\t14.Therefore, in our considered opinion when an Act imposed a strict
\ncompliance on the appellant Department to protect the national monuments, the
\nCourt cannot grant a direction to the statutory authorities to act contrary to
\nlaw. In this context, useful reference can be made to the judgment of the
\nSupreme Court in Union of India and another Vs.Kirloskar Pnuematic Co., Ltd.,
\nreported in (1996) 4 SCC 453 wherein it has been held as follows:\n<\/p>\n
\t“What is relevant herein is sub-section (4) of unamended Section 27 and
\nsub-section(3) of amended Section 27 of the Customs Act, 1962. According to
\nthese sub-sections, a claim for refund or an order of refund can be made only in
\naccordance with the provisions of Section 27 which inter alia includes the
\nperiod of limitation mentioned therein. Even assuming that Section 27 did not
\napply either o a suit filed by the importer or to a writ petition filed by him
\nand that in such cases the period of limitation would be three years, it is not
\npermissible for the High Court, even while acting under Section 226 of the
\nConstitution, to  direct the authorities under the Act to act contrary to the
\naforesaid statutory provision. The power conferred by Articles 226\/227 is
\ndesigned to effectuate the law, to enforce the rule of law and to ensure that
\nthe several authorities and organs of the State act in accordance with law. It
\ncannot be invoked for directing the authorities to act contrary to law. In
\nparticular, the Customs authorities, who are the creatures of the Customs Act,
\ncannot be directed to ignore or act contrary to Section 27, whether before or
\nafter the amendment. May be the High Court or a civil court is not bound by the
\nsaid provisions but the authorities under the Act are. Nor can there be any
\nquestion of the High Court clothing the authorities with its power under Article
\n226 or the power of a civil court. No such delegation or conferment can ever be
\nconceived. Hence, High Court’s direction that the authorities should not reject
\nthe refund application on the ground of being time-barred, is not sustainable in
\nlaw”.\n<\/p>\n
\t15.In Sree Arumugam Teacher Training College Vs. Thiruvalluvar University
\nreported in 2006 (3) MLJ 65, this Court in paragraph 18 of the order held as
\nfollows:\n<\/p>\n
\t“18.A writ of mandamus cannot be issued to a statutory authority to commit
\na wrong in violation of the statutes. In a catena of judgments, the Supreme
\nCourt has held that no writ can be issued to the authorities either to disobey
\nthe law or to violate the law”.\n<\/p>\n
\t16.Therefore, we are of the considered opinion that Rule 5(1) clearly
\ngives unambiguous meaning that the monuments which are not specified in First
\nSchedule shall remain open only from sunrise to sunset. If any direction is
\nissued to the statutory authorities to permit the devotees to celebrate the
\nfestival during night hours, which will go against the statutory rules.
\nTherefore, such a direction cannot be granted. In our view, the judgment of the
\nlearned single Judge is liable to be set aside and accordingly, the same is set
\naside. Consequently, the writ appeal stands allowed. No costs.\n<\/p>\n
To<\/p>\n
2.The District Collector,
\n  Tirunelveli District,
\n  Tirunelveli.\n<\/p>\n
3.The Tahsildar,
\n  Sankarankoil Taluk,
\n  Sankaratkoil.\n<\/p>\n
4.The Inspector of Police,
\n  Senthamaram Police Station,
\n  Sankarankoil Taluk,
\n  Sankarankoil.\t\t<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court The Superintending … vs Kudaivarai Kovil Thirumalpuram on 13 December, 2010 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 […]<\/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-211509","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nThe Superintending ... vs Kudaivarai Kovil Thirumalpuram on 13 December, 2010 - 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\/the-superintending-vs-kudaivarai-kovil-thirumalpuram-on-13-december-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The Superintending ... vs Kudaivarai Kovil Thirumalpuram on 13 December, 2010 - 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