GOVERNMENT OF TAMILNADU Vs. K SEVANTHINATHA PANDARASANNATHI

JUDGEMENT

(1.) The Government amended the Tamil Nadu Hindu Religious and Charitable Endowments (Amendment) Act 1959 (H.R. & C.E. Act in short) by adding clause (aaa) to Section 26 by Act 30/84 with effect from 13-05-1984, disqualifying a person from being appointed as or from being a trustee of any religious institution if he is not a citizen of India. This clause was challenged by the writ petitioner with success and therefore, the State has filed this appeal.

(2.) The facts are as follows:

(3.) Mr. A.L. Somayaji, learned Senior Counsel appearing for the first respondent who is the writ petitioner submitted that the amendment is ultravires the Constitution. He referred to Entry 17 of the Union List viz., "citizenship, nationalisation and aliens" and submitted that the amendment squarely affects the rights of an alien namely the first respondent. Therefore, the State cannot legislate on a subject which is covered by Entry 17 List I. He submitted that the scope of Entry 17 should be given full play and cannot be restricted in its operation. The learned Senior counsel submitted that the amendment cannot be justified on the ground that the amendment falls within Entry 28 List III deals with "charities, charitable institutions, religious endowments and religious institutions". The learned Senior Counsel submitted that it is not necessary to invoke the Doctrine of pith and substance since the matter wholly falls within Entry 17. It is also submitted that an alien is entitled to equal protection under law and the Amending Act 30/94 is arbitrary and negates equality. He also submitted that the right to hold office is 'property'. As per the Scheme decree, the hereditary trusteeship devolved on the respondent and therefore the impugned provision is violative of Article 300A. It was submitted that the amendment which prohibits foreigner or alien from being or being appointed as a trustee is an unreasonable classification and there is no nexus with the object that is sought to be achieved by the amendment. The learned Senior Counsel also submitted that in no other State in India is there such a provision and therefore, this would result in unfair treatment between an alien in the State of Tamil Nadu and an alien for instance, in the State of Karnataka or Andhra Pradesh. The learned Senior Counsel referred to Article 256 and 254 of the Constitution of India. The learned counsel submitted that the fact that the assent of the President has been obtained cannot cure the unconstitutionality. He relied on the following judgments: