THIRU SABANATHA OLI SIVACHARIYAR Vs. COMMISSIONER

JUDGEMENT

(1.) These writ appeals are directed against the impugned order passed by the learned single Judge dtd. 24/3/2010 made in Writ Petition Nos.22886 and 22887 of 2007, confirming the orders passed by the Joint Commissioner, Hindu Religious and Charitable Endowments Department, the second respondent herein in Current R.C.Nos.1426/2006/A2 and 1971/2006/A2, dtd. 18/9/2006 respectively and re-confirmed by the Commissioner, Hindu Religious and Charitable Endowments Department, the first respondent herein in R.P.Nos.71/2007 and 72/2007, dtd. 30/4/2007 respectively.

(2.) Mr.M.C.Swamy, learned counsel appearing for the appellant argued that Vallalar was a staunch devotee of Lord Nataraja of Chidambaram. He also devoted his entire life in propagating Shaivism. He has also written many lyrics in praise of Lord Shiva at Padi, Lord Subramaniar at Kandakottam and Goddess Vadivudaiamman at Thiruvotriyur. Vallalar had great respect for the forefather of the appellant, namely, Adoor Sabapathy Sivachariyar. On many occasions, both Vallalar and the appellant's forefather had debated and discussed on various aspects of Shaivism. Accepting Vallalar's principles and tenets, number of disciples and followers donated lands and cash gifts. Vallalar also had strong belief that Lord Shiva is the only ultimate God, because Lord Nataraja at Chidambaram was considered as one of Shiva's manifestation. Therefore, he sung many poems in praise of Lord Nataraja, which were subsequently published as "Nangam Thirumurai". After designing the architecture of the temple in Vadalur, a temple was constructed in the form of Lotus leaves with "Ashtakonam Formation" and named this temple as "Uthira Gnana Sabai", while he called Chidambaram temple as "Purva Gnana Sabhai". Vallalar had also installed a "Spatika Lingam" representing "Roopa/Arupa" manifestation of Lord Shiva. Seven curtains were hung representing seven "Sakthis". He also put a plain glass and lamp behind the glass in the "Sanctum Sanctorum" in Vadalur. The consecration function was also carried out by the forefather of the appellant as per the Agamic rules on 25/1/1872. But, subsequently, the Hindu Religious and Charitable Endowments Department took over the administration of the temple established by Vallalar. However, the pooja system based on Agamic way, which was started during the lifetime of Vallalar, continued even after the administration was taken over by the Government. When complaints were given to the Department complaining about the wrong rituals performed at Vadalur contrary to the philosophy propounded by Vallalar, the Joint Commissioner, Hindu Religious and Charitable Endowments Department, Villupuram was directed to conduct an enquiry by the first respondent. After issuing notice to the appellant and others, the second respondent conducted the enquiry without following the procedure contemplated under Sec. 63 of the Hindu Religious and Charitable Endowments Act and without any due regard to the custom and usage in the Sathiya Gnana Sabai, wrongly passed the impugned order dtd. 18/9/2006 directing certain forms of rituals to be performed, as if those rituals were ordained by Vallalar as per his letter dtd. 18/12/1872 with a further direction to stop all other forms of rituals which were conducted for the last 136 years.

(3.) Learned counsel appearing for the appellant also submitted that the second respondent has no power under the Act to direct as to what rituals are to be performed in a religious institution, because nowhere the Act gives power to the Department to interfere in the religious affairs of the institution. When the proceeding is conducted by the Joint Commissioner, he should have held the enquiry in conformity with Ss. 63, 69, 110 and 114 of the Act and the non-compliance would vitiate the mandatory provisions of the Act. But this has been ignored by the learned single Judge. Under Chapter V, the Joint Commissioner is defined as a Court, while so, he cannot hold the enquiry to his whims and fancies. The learned single Judge ought to have held that it is for the respective third respondent to prove their case and not for the appellant, because shifting of the burden will come into play only if the respective third respondent prove their case. This vital aspect has been overlooked. Moreover, the respective third respondent had not produced any documentary evidence to substantiate their contentions, except placing self serving oral testimonies. Therefore, when appeals were filed before the Commissioner, he has, confirming the findings and conclusions reached by the second respondent, simply dismissed the case of the appellant. The learned single Judge also, narrating the background of Vallalar history, referring to various judgments in Durgah Committee v. Syed Hussain Ali, (1962) 1 SCR 383; Seshammal v. State of Tamil Nadu, (1972) 2 SCC 11; M.Ismail Faruqui (Dr) v. Union of India, (1994) 6 SCC 360; Pannalal Bansilal Pitti v. State of A.P., (1996) 2 SCC 498; A.S.Narayana Deekshitulu v. State of A.P., (1996) 9 SCC 548; N.Adithayan v. Travancore Devaswom Board, (2002) 8 SCC 106; Guruvayoor Devaswom Managing Committee v. C.K.Rajan, (2003) 7 SCC 546, has wrongly dismissed the writ petitions, when none of the above judgments are applicable to the present cases. When poojas are performed in Chidambaram temple as roopa form of Lord Shiva Linga and also aroopa form behind the screen even now, Saint Vallalar himself had stated that Lord Nataraja had given darshan in Sathya Gnana Sabai in Jothi swaroopam and after he had darshan of Lord Shiva in Jothi swaroopam, he started chanting Lord Shiva as "Arutperum Jothi Thani Perum Karunai". Therefore, when poojas are performed in Chidambaram temple and also in Tiruvannamalai temple, prohibiting the performance of poojas in Sathiya Gnana Sabhai cannot be sustained. Moreover, when the books published by the Department are the evidence for conducting poojas in the Sabha, the learned single Judge dismissed the writ petitions confirming the wrong orders passed by the Joint Commissioner and the Commissioner, therefore, they are liable to be set aside, he pleaded. Mr.M.C.Swamy further contended that the fact that Vallalar Adigal himself wore sacred ash on his forehead, gave holy ash and prasadham to devotees coming to the temple cannot be brushed aside. Therefore, the Commissioner, under the guise of declaring established usage of religious institution, cannot alter the religious rituals, mode of worship, etc., which are in clear violation of Articles 25 and 26 of the Constitution of India. Article 25 guarantees that all persons are equally entitled to freedom of conscience and free profession, practice and propagation of religion. Article 26 also says that every religious sec. shall have the right (a) to establish and maintain institutions for religious and charitable purposes; and (b) to manage its own affairs in matters of religion. Therefore, the Commissioner, ignoring the fact that Vallalar himself gave pooja articles, Spadikalingam to the appellant's grandfather and thereby requested to conduct Poojas, cannot alter the same. It is also evident from the letter written by Vallalar to his grandfather dtd. 3/6/1868. Moreover, the respondents by relying upon 6th Thirumurai came to the conclusion that Vallalar was against idol worship and propagated Jyoti worship, but the same was not published by Vallalar.