S. SARVESHWARAN ACHARI Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) This writ appeal has been directed against the impugned order dtd. 23/9/2022 passed by the learned single Judge in Writ Petition No.25803 of 2022, dismissing the writ petition filed by the appellant/writ petitioner on a challenge to the G.O.Ms.No.103, Tourism, Culture and Religious Endowments Department dtd. 23/9/2020 reducing the term of office of the non-hereditary trustees from three years to two years.

(2.) Mr.R.Singaravelan, learned Senior Counsel appearing for the appellant/writ petitioner argued that Arulmighu Sri Kalikambal Kamadeswarar Temple is one of the ancient temples in the State constructed even prior to 16th Century B.C., because the Great Maratha Warrior Chatrapathi Sivaji Maharaj visited this temple and offered his prayers to the Goddess on 3/10/1677 during his Dakshin Digvijaya campaigns in South Indian region. This temple is also identified with Viswakarma community people and absolutely dedicated to the said family only. Moreover, Arulmighu Kalikambal Kamadeswarar Temple is a denominational temple declared under the Scheme Suit, C.S.No.654 of 1926 dtd. 8/8/1927 and the Scheme framed in the said suit was re-framed by formulating a fresh scheme in its place, vide judgment and decree dtd. 25/9/1935 passed in C.S.No.62 of 1933 by the High Court of Madras. As per the said Scheme Decree dtd. 25/9/1935, the management and administration of the temple exclusively vest with the Hindu Vishwakarma community people alone. The Scheme Decree clearly mentions the manner and administration of the day to day activities of the temple. It also deals with the mode of conduct of election, qualification of members who wish to contest elections, besides the tenure of office etc. When Clause-5 of the Scheme Decree spells out the tenure of office of trustees for three years, the said period of three years cannot be reduced to two years by the impugned G.O.Ms.No.103 dtd. 23/9/2020, as the temple is a denominational temple declared under the Scheme Decree dtd. 25/9/1935 in C.S.No.62 of 1933 and that the management and administration of the temple exclusively vest with the Hindu Vishwakarma community people. Therefore, in view of Sec. 107 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (for short, "the Act"), Sec. 47 of the Act cannot be pressed into service, in the absence of any complaint either under Sec. 106 of the Act or Article 25(2) of the Constitution of India, as it is a denominational temple protected by Article 26 of the Constitution of India, for the simple reason that the scheme in respect of a denominational temple can be modified only by resorting to civil remedy to modify or re-frame the scheme settled by the competent civil Court under Sec. 92 of the Code of Civil Procedure. In the case on hand, when the scheme was settled by this Court in C.S.No.62 of 1933 on 25/9/1935, as per the Scheme Decree, when the tenure of trustees is three years and not two years, the ratio laid down by the Hon'ble Apex Court in R.Murali and others v. Kanyaka P.Devasthanam and Charities and others, (2005) 6 SCC 166 would squarely apply to the present case. The judgment says, he pleaded, that the institution of religious denomination of Arya Vysya community is protected under Article 26 of the Constitution of India from interference in its administration by the authorities under the Act, because the right guaranteed under Article 26 of the Constitution of India has been expressly protected under Sec. 107 of the Act by making inapplicable the other provisions of the Act including Sec. 64 to institutions of religious and charitable nature of religious denominations. Arguing further, the learned Senior Counsel submitted that the impugned Government Order passed without following the procedure contemplated under Sec. 64(5) of the Act is liable to be set aside. Concluding his arguments, it is argued that when the G.O.Ms.No.103 dtd. 23/9/2020 was issued during the Corona virus pandemic situation, when the State and Central Governments have issued advisories to the public at large that they shall wear face masks mandatorily in all public places, due to the fear of Corona virus, the trustees elected could not challenge the Government Order immediately. But the learned single Judge, finding fault with the filing of the writ petition challenging the said Government Order, has erroneously held that the trustees cannot challenge the Government Order impugned at the fag end of their tenure. This finding of the learned single Judge is contrary to the admitted pandemic situation prohibiting the people not to come out of their homes during the Corona virus pandemic situation. Moreover, in some of the places, the Court proceedings were also held through video conferencing mode. This aspect has been completely overlooked by the learned single Judge. Therefore, the impugned order is liable to go, the learned Senior Counsel pleaded.

(3.) A detailed counter affidavit has been filed filed by the second respondent. Mr.R.Shunmugasundaram, learned Advocate General appearing for the respondents argued that when the Board of Trustees of Arulmighu Sri Kalikambal Kamadeswarar Devasthanam shall have a tenure of three years from the date of election, by virtue of Sec. 47(3) of the Act, the term of office of non-hereditary trustees was reduced from three years to two years. But the implementation of the Scheme was kept in abeyance for few years due to the pendency of litigations challenging both 2008 and 2010 amendment Acts on reducing their term of office under Sec. 47(3) of the Act. When the election to the Board of Trustees to the said Devasthanam took place in the year 2012, the first respondent passed G.O.Ms.No.173 dtd. 3/7/2012 fixing the term of office as three years, instead of two years, granting them the benefit of pendency of the litigations on the validity of such amendment. When this Court has upheld the validity of the amendment to Sec. 47(3), the same was implemented effectively. Therefore, when the said Devasthanam Board was again elected and constituted in May 2016, the first respondent passed G.O.Ms.No.48, Tourism, Culture and Religious Endowments Department dtd. 4/3/2016 restricting the period of newly elected Trust Board for two years. This was questioned in Writ Petition No.10652 of 2018. The learned single Judge passed an order on 27/4/2018 directing the petitioners therein to give a fresh representation to the second respondent with a further direction to consider the same and pass appropriate orders. Accordingly, a fresh representation dtd. 7/5/2018 was given by the Board of Trustees to the first respondent, who has, vide order dtd. 4/9/2018 in Na.Ka.No.2491/2018/A1, reiterated the legal position that the period of the Trust Board shall be only for two years, which is in fine tune with Sec. 47(3) of the Act, because Sec. 50 will prevail and override if anything runs contrary to the said Scheme. Two more writ petitions, namely, W.P.Nos.24060 of 2018 and 4751 of 2019 were also filed by the trustees and devotee against the order dtd. 4/9/2018. In the meanwhile, another devotee filed Application No.3021 of 2019 in the Scheme Decree, C.S.No.62 of 1933 to conduct elections for trusteeship for the year 2019. This Court, by order dtd. 24/4/2019 in A.No.3021 of 2019 in C.S.No.62 of 1933, appointed Fit Person and Additional Fit Person to continue the affairs till such time the elected Board including the Managing Trustee have been elected and ready to take office. This was questioned in O.S.A.Nos.133 and 135 of 2019 before the Division Bench of this Court and the same was set aside directing the Government to conduct election to the temple in question. In the meanwhile, the tenure of the existing trustees got expired. Only thereafter, in February 2020, election was conducted and five non-hereditary trustees were appointed with a tenure of two years. By giving a representation dtd. 9/6/2021, the trustees of the Board sought for one more year and thereafter filed W.P.No.7725 of 2022 for a mandamus to consider their representation and also to modify the G.O.Ms.No.103 dtd. 23/9/2020. The said writ petition was disposed of on 30/3/2022 with a direction to the respondents to consider the same. The appellant/writ petitioner also filed W.P.No.25803 of 2022 for issuance of a writ of certiorarified mandamus, calling for the records of the respondents, particularly that of the second respondent in G.O.Ms.No.103 dtd. 23/9/2020 and quash the same as illegal, ultra vires and without jurisdiction and contravention to the scheme decree passed in C.S.No.62 of 1933 dtd. 25/9/1935 and consequently direct the respondents to confirm the tenure of 3 years for the elected board of Trustees who are holding office in Chennai Sri Kalikambal Kamadeswarar Devasthanam at No.212, Thambu Chetty Street, Chennai-600 001, for 3 years as fixed by scheme decree passed in C.S.No.62 of 1933 dtd. 25/9/1935 and accordingly permit the present Board of Trustees to continue to hold and discharge their office until 1/10/2023. The learned single Judge, appreciating the legal position, has rightly dismissed the writ petition. When the third respondent had also issued a notice dtd. 12/9/2022 in R.C.No.3082/2022/A1 inviting their consent for modification of the Scheme Decree as framed in C.S.No.62 of 1933, that does not require any interference. Therefore, the writ appeal should go, the learned Advocate General pleaded.