COMMISSIONER H R AND C E DEPARTMENT FIT PERSON SRI MAYURANATHA SWAMI TEMPLE MADRAS 41 Vs. MAHA TEJO MANDALA SABHA ITS SECRETARY MR M JAYARAMAN

JUDGEMENT

(1.) These appeals have been directed against the common judgment and decree, dated 30.8.2000, made in O.S. Nos. 9404, 9405 & 9257 of 1994, on the file of the V Assistant Judge, City Civil Court, Madras.

(2.) The averments in the plaints in O.S. Nos. 9404 and 9405 of 1994 and the contentions in the written statement of defendants 5 and 6 in O.S. No. 9257 of 1994 are as follows: (a) Sri Mayuranathar alias Pamban Kumaraguru Dasar Temple, Mayurapuram, Thiruvanmiyur, Madras- 600 041, is popularly known as Pamban Swami Temple. Sri Pamban Kumaraguru Dasar, whose name was Ayyavoo, was born in between 1850 and 1852 in Rameswaram, Ramanad District. His father was Sathappa Pillai, who hailed from Pamban near Rameswaram, and his mother was Sengamalavalli of Rameswaram. This Pamban Kumaraguru Swamigal has taken to ascetic life, when he was aged 45. The said Swamigal, after completing his pilgrimage tour of several holy places, has finally settled down at Madras and died on 30.5.1929. During his lifetime, Pamban Swamigal has created a Sabha by his Will dated 17.7.1926. He has also left behind a Codicil, dated 19.12.1927. As per the terms of the Will, Late Pamban Swamigal formed a Sabha, namely, Maha Tejo Mandalathar. In the Codicil, Late Pamban Swamigal has made some alterations to the Will. The said Trust is a religious charity consisting of specific endowment and the whole thing has been dedicated to the Hindu community as a place of public religious worship. The Swamigal purchased a land in the name of Mr. T.T. Kuppusami Chettiar, the then Secretary, whose name was referred in the Codicil, at Thiruvanmiyur. (b) It is seen from Codicil that Late Swamigal has made a provision for sale of his publications to be used for the purpose of the activities of the Sabha. Since Late Pamban Swamigal was a Saint, his body was interned in a portion of the said land. There were daily Poojas and annually Guru Poojas. Late Pamban Swamigal was an ardent devotee of Lord Subramania. A perusal of the Will and the Codicil of the Swamigal will clearly show that his intention was to have a public religious worship of MayuraVahana Sevanam, which he was performing even during his lifetime. It is also seen that permanent structures were put up and idols of MayuraVahananar and Sithi Vinayagar were installed and consecrated and Kumbabishekam was also performed in 1958. A sole idol of Swamiji had been erected and consecrated. There was public contribution. There was also procession of the Ursavar Idols till there was Balalayam. Even after Balayalayam for Mayura Vahana Sevanam, there is procession of Vel. (c) Disputes arose in the year 1971 when the H.R. & C.E. Department called for applications for appointment of Trustees. The said Mr. T.T. Kuppusami Chettiar, filed W.P. No. 3501 of 1971 raising a question of jurisdiction of the Department for appointment of Trustees and the same was allowed on 4.9.1973, leaning open the question as to whether the institution in question comes within the purview of the Act or not is a matter to be decided in a regularly instituted action. It was observed that it is open to the Department to initiate suo motu action under the provisions of the Tamil Nadu Hindu Religious and Charitable Endowment Act, 22 of 1959. Thereafter, the public religious worship continued and there was public contribution. (d) While so, the said Mr, T.T. Kuppusami Chettiar himself gave a letter on 9.8.1984 to Hindu Religious & Charitable Endowment (Administration) Department, stating that he is conceding that the institution in question is a temple and that it is coming under the provisions of the Act and he wanted a scheme to be framed. Since the rival persons are trying to take over the management, he agreed for handing over the charge of the institution. Then the Deputy commissioner of the Department took charge of the institution and appointed the Executive Officer of Bairagi Madam to manage the affairs of the institution and its properties. Thereafter, the Executive Officer of Sri Balasubramania Temple, Teynampet, Madras-600 018, was appointed as fit person. Later the Assistant Commissioner, H.R. & C.E. Department, was appointed as fit person and the 2nd plaintiff in O.S. No. 9404 of 1994 has been directly appointed as the Executive Officer of the Institution, From then onwards, the plaintiffs in O.S. No. 9404 of 1994 are in management of the affairs of the Institution. (e) When things are, such, in the year 1988 one Mr. S.M. Nathan, Secretary of Maha Tejo Mandala Sabha filed the suit O.S. No. 11359 of 1988 for a declaration that they alone are entitled to manage the affairs of the Institution and that the plaintiffs herein and the Commissioner, H.R. & C.E. Department should not interfere with their management. But the same was dismissed on 12.4.1991. Appeal filed by them was also dismissed. In the meantime, the said Mr. S.M. Nathan represented the Sabha and filed O.A. No. 19 of 1989 on the file of the Deputy Commissioner, H.R. & C.E. Department for declaration that the Institution of Sri.Pamban Swamigal is only a Samadhi and not a religious institution. Pending O.A., One Mr. Shanmugasundaram filed mandamus in W.P. No. 6157 of 1991 directing the Commissioner, H.R. & C.E. Department and the Deputy Commissioner, H.R. & C.E. Department to entrust the Sabha to Maha Tejo Mandala Sabha for performance of all religious and spiritual functions of Sri Pamban Kumaraguru Dasar Swamigal Samadhi at Thiruvanmiyur, Madras - 41. In the writ petition, an order was passed directing the Department to hand over the management of the Institution to the Sabha. As against that, a writ appeal was filed questioning the order in the writ petition. The writ Appeal itself was disposed of on 18.7.1991, passing an agreed order that the management will continue under the Department till the final adjudication under Section 63(a) of the Act. (f) The O.A. was dismissed on 1.10.1993, holding that the applicant in O.A. cannot claim such a declaration that the institution of Pamban Swamigal is not the religious Institution under Section 6(18) read with Section 6(13) and 6(2) of the Act. Aggrieved against the said order of the Deputy Commissioner, H.R. & C.E. (Administration) Department, two appeals were filed, one by the 1st defendant herein namely Maha Tejo Mandala Sabha represented by its Secretary S.M. Nathan and the other by one Dr. B. Raman, the 2nd defendant herein and the same were allowed on 27.10.1994. Against the said order, the plaintiffs have filed these appeals on various grounds.

(3.) The contentions raised by the first defendant are as follows: (a) The 1st defendant denies the various averments pleaded in the plaint. The 1st defendant stated that Srimath Pamban Swamigal was an ardent devotee of Lord Muruga and even in his young age of 14 he had mastered Tamil Literature and had a fair working knowledge of the Vedas, Upanishad and Agama Shastras in Sanskrit. In his 16th year, he decided to sing one song every day before he took the morning meals invoking the blessings of Lord Muruga and invoking his Manasa Guru Srimath Arunagiri Nathan. In 100 days he had produced invocations on Lord Subramaniyam which brizzle with Esotric Truth of the Vedic Suddh advaitha Saiva Siddantha doctrine. In continuation of his Mission in praising the Lord, he had composed 6666 song compiled in 6 Kandams. Srimath Pamban Swamigal had unique excellence in expounding the intricate Methaphysics of Suddha Advitha Saiva Siddhantha doctrine and has mastered 108 Upanishads, in Sanskrit and Mahaskandhapuram rendered in Sanskrit and also the other allied Puranas. A bare study of his invocation songs and prose works would clearly establish that he never allowed the concept of idolatry but confirmed himself to the Philosophy of incessant awareness of the Lord without form and name in one's own heart which he has described it 'DAHARAKASAN'. His main object was that the devotees of Lord Muruga should slowly train themselves for awareness of 'Subramaniya Parabramam' in his own self and culminate in Aruva Vashipadu and according to him Sri Lord Muruga in one's heart appears in the form of a Virat Pranavakaram pervading the entire universe both Micro-casm and Macro-casm and the said Virat Pranavekara Guhabrahmam embellishes the Lotus heart of every individual as 'Prekrithi Prenavam\ Sri Swamigal has specifically stated in various works that he never wanted to construct a temple or a Madam or any form of organization to project him as a demi-God within this country or outside the country. (b) He was of the firm opinion that even great person like Jesus, Mohamed Nabi, Buddha, Viswamithra Jamadhagni are human beings and mortals and they should not be elevated to the pedestal of God as they are only messengers of God having imbibed divine wisdom by constant internal worship of the Great Almighty bereft of all worldly desires. Under this back ground of philosophy, Srimath Pamban Swamigal had taught his close devotees the Idalambars Archanam and not 'Bahir Archanam' of idols made of Panchalokha or earth or gems as such worship of idols would bring about literation for the individual but would throw him back amidst the oceans of continuous birth and deaths. Srimath Swamigal who had mastered the Skandhapuranam in Sanskrit and also in Tamil had referred to the great 'Vishwa Rupadarisanan' which Lord Subramaniya presented to the Gods as 'Maha Tejo Mandala' as described in the Sambavakanda of Skanthapuranam written in Sanskrit. He had also referred to in various works that even the Trinity could not with their naked eye see the celestial aura as exhibited in the said Maha Tejo Mandala Dharishanam. In fitness of things, he thought to name all those devotees irrespective of caste, community and the country to which they belong who take to a Eka Dhaiva Guha Vazhipadu to come under the umbrage of Maha Tejo Mandala Sabha. (c) Srimath Pamban Swamigal attained Samadhi on 31.5.1929, on the krishanapaksha Shasti of the Tamil month of Vaikasi. Even few months prior to this, Srimath Pamban Swamigal had directed his Chief devotee Mr.Chinnasami Josier of Triplicane (Otherwise known as Subramania Dasar) that he may leave his mortal remains soon and that a Land should be purchased at Thiruvanrniyur and even blessed him with Vibuthi so that he may be successful in his mission. Though the land in Thiruvanrniyur Village belonging to one Sundaram Iyer was fixed, Srimath Pamban Swamigal had attained Samadhi, before the registration could be completed. The owner of the land permitted the mortal remains of the Swamigal to be interned there, at the Samadhi already constructed by Maha Tejo Mandalathar. The said land is the property of the Maha Tejo Mandala Sabha and the sale deed itself would clearly show that the land has been purchased in the name of the then Secretary Mr.T.T.Kuppusamy Chettiar. The devotees led by Mr.P.Chinnasamy Josier known as Subramania Dasar and T.T.Kuppusamy Chettiar and Others belonging to Maha Tejo Mandal Sabha constructed the Samadhi out of their own funds and made provisions of the performance of Nitya Pooja, Guru Pooja. The committee and Trustees of Maha Tejo Mandala Sabha made proper provisions for the due performance of all festivals which were ordained to be performed by Srimath Pamban Swamigal including Mayura Vahana Seva. The institution was called Sannithana of Srimath Pamban Swamigal and important Pooja were performed. (d) In 1941, the Samadhi building which was in a thatched shed was constructed by the contributions of the members of Maha Tejo mandala Sabha and in the year 1942 one Mr.Masilamani Mudaliyar, another ardent devotee of Srimath Pamban Swamigal and also a member of committee of Trustees of Maha Tejo Manadala Sabha constructed a building known as 'Arachalai' on the site purchased and dedicated the same to the Maha Tejo Mandala Sabha for feeding worshippers and pilgrims during the Mayura Vahana Seva and other festivals irrespective of the fact whether such disciples and worshippers belong to Hindu Community or form part of other communities, even the said Arachalai is not exclusively for Hindu Community. As already stated, the members of Maha Tejo Mandala Sabha provided from their own funds, utensils and other requisites necessary for the performance of the Pooja and Neivethiam to be distributed to the worshippers. However, contrary to the tenets of Srimath Pamban Swamigal, in 1958, the then Secretary of Maha Tejo Mandala Sabha installed an idol of Lord Muruga with peacock and later an idol in black stone of Srimath Pamban Swamigal which was installed in 1961. But, they were never dedicated to the public and they formed part and parcel of the Samadhi. (e) The 1 st defendant states that from 1929 till today the institution is only a Samadhi and whatever might have been constructed they are adjuncts of the said Samadhi. The Samadhi and the observance which go around it are inseparable. The 1 st defendant further states that the presence of the idol of Lord Muruga and of Srimath Pamban Swamigal as an adjunct to the Samadhi would be considered and intended merely to invest the observances in the Samadhi with some religious tinge in gratitude to a great Saint who had worked for the Philosophy of Sudda Advaita Vaideeka Saiva Sidhantha. The defendant states unequivocally that there is no dedication to the public. There is no compartmentalisation between the Samadhi and idols installed in 1958 and 1962 and they are inseparable entities. There is no dedication of any property either to Samadhi or the idols founded in 1958 which is an adjunct. There are no Dwajasthambams, no Garbagiriham nor any Bali Peetam. At the time of foundation of Lord Muruga idol, there is no corresponding utsava idol. The worship was maintained and expenses were met by the members of the Maha Tejo Mandala Sabha. There are no features which substantiate any dedication to the public and as such the above institution can never be characterised as a religious institution or a public religious endowment. The first defendant stated thatMr.Chinnasamy Josier died in the year 1951 and his mortal remains were interned in a place proximate to the Samadhi of Srimath Pamban Swamigal and the Maha Tejo Mandala Sabha has also constructed a Samadhi in commemoration of the said Subramania Dasar to whom Srimath Pamban Swamigal had made special and significant reference in is works particularly in Ashoka Salavasam which is a scripture enjoined to be studies at the time of Mayura Vahana Seva ordained to be performed by Srimath Pamban Swamigal. (f) In the year 1971, when the Department tries to clutch at the jurisdiction over the Samadhi Nilayam, the then secretary of Maha Tejo Mandala Sabha Mr.T.T.Kuppusamy Chettiar filed a writ petition in W.P. No. 3501 of 1971 and the same was allowed. The 1 st defendant states that in contravention and in open violation of the ruling of the High Court in W.P. No. 3501 of 1971 and in the absence of specific and valid declaration under Section 63 (a) of the Hindu Religious and Charitable Endowment Act as to whether the place of Srimath Pamban Swamigal is a Samadhi or temple, the department has absolutely no jurisdiction to exercise any control or supervision over the management of the institution and in the terrorism had allegedly procured a letter from T.T.Kuppusami Chettiar on 9.8.1984 and had taken over the management of the institution with a character of a temple. The appointment of fit person and Executive Officer is also void. Further, the want on destruction of the superstructure of the Samadhi including the plaques in the Samadhi if Srimath Pamban Swamigal and the demolition of the superstructure over the Samadhi done under the guidance of Thiruppani committee are one among any perpetrated illegal acts. The 1 st defendant states that the institution is a Samadhi and the evidence from 1929 to 1984 clearly substantiates the fact that the institution was treated only as Samadhi and not as a temple merely on the fact that the idols have been installed only in 1958. As the property on which the Samadhi is situated belongs to Maha Tejo Mandala Sabha and as the building constructed by Masilamani Mudaliar, one of the committee members as Archalai for feeding poor without distinction of caste, creed or religion which is situated over the property is composite in character and such the Department has no jurisdiction either to administer the same or to control the management. (g) The 1st defendant further states that Guru Pooja can be performed only to a person who has attained Samadhi and as such the act of the Department in conducting the Guru Pooja by itself to the Saint on the Krishna Shasti of Vaikasi every year from the date of illegal take over clearly also proves that the institution is only a Samadhi. The fact that there is also a Samadhi of Sri.Chinnasamy Josier otherwise known as Subramania Dasar proximate to and behind the Samadhi's of Pamban Swamigal clearly proves that the place consists of Samadhi's of the Saint Srimath Pamban Swamigal and his Chief disciple Subramani Dasar. In W.P. No. 6157 of 1991 dated 20.6.1991, it is held that the take over is illegal and relying upon various decisions held that consent of Mr.T.T.Kuppusami Chettiar cannot.bind the members of Maha Tejo Mandala Sabha. Further under Section 70 of the H.R. & C.E. Act the relief sought for must be confined to the legality of propriety of the order of the Appellate Authority as to the character of the institution and the relief of Permanent injunction is not maintainable, particularly in view of the consent order passed in W.A. No. 853 of 1991. This defendant states that concession by Mr.T.T.Kuppusami as to the character of the institution is invalid in Law and amounts to alienation of office and the H.R. & C.E. Cannot be given validity of their make over on an invalid concession, as they are beyond by the writ of prohibition issued by the High Court in W.P. No. 3501 of 1971. Further, the Commiossioner. the appellate authority has taken all relevant considerations and document and oral evidence to come to the only one irresistible conclusion that the institution is a Samadhi. As regards the contention of the plaintiff regarding the reliance upon the letter of Thiru.Muruga Kripanandavariyar dated 12.2.1993, this defendants states that at the time of the appeal before the Commissioner, Mr.Kripanandhavariyar had passed away and as such the statement contained in the letter dated 12.2.1993 is admissible in evidence and no objection as to the reliance on the said letter was raised by the plaintiffs herein. (h) The first defendant states that the institution in question has not come within the definition under Section 6(2) of the Tamil Nadu Act 22 of 1959 as according to Agama Shastras there cannot be a temple within 50 metres of Samadhi's and again in any event the place where the Swamiji's mortal remains were interned, really is a Samadhi and that the same is Samadhi has been admitted by RW2. Therefore, the contention raised in the plaint are not based either on evidence or on the principles of Hindu Law. As regards the contention in the plaint that the founder clearly intended that there is a dedication in favour of Hindu Community is not borne out by evidence and if the contentions refers to Mayuravahana Sevena Vizha, this defendant say Mayuravahana Seva is a historic divine retreat for the members of the Maha Tejo Mandala Sabha which is not consisting of only members of the Hindu Community but also Muslims and Christians and this retreat is a culmination of a divine cure of a grave injury, which Srimath Pamban Swamigal had when on 27.12.1923 Swamiji sustained a fracture in the left leg due to being over run by a hawk cart at Thambu Chetty Street at the age of 73 years. After the Nirvicupple Samadhi which the Pamban Swmigal has been hearing for from his boyhood is manifested in poem No.7 in the 16th invocation captioned Nishkalanandha Guhan in the 1st Mandalam composed when he was about 16. (i) The first defendant states that the main intention for the authorities of the H.R. & C.E. particularly the plaintiffs herein is to make the institution as one of profiteering idolatry while the main philosophy of Srimath Pamban Swamigal is to have the worship of the Parabhamam who according to Swamigal in Lord Subramania who is the totality of the 3 concepts Sath, Chit and Anandham (Trust, Power and bliss) representing, Shiva Sakthi and Guha in one's own heart lotus by which process all bondage prior to birth and attracted during the life could be eschewed and eliminated completely so that ultimately one could get liberation by Jeevan Mukthi, and as such, the institution of Sathi cannot be a source of profiteering idolatry for which the plaintiffs crave, for which prayer of the plaintiffs the 4th respondent obliged by equating Srimath Pamban Swamigal to God in his order in O.A. No, 19 of 1989 to hold it as a religious institution which erroneous decision was rightly set aside by the Appellate Authority the 5th defendant herein. (j) The first defendant states that the legal contention raised from Para 37 to 40 of the plaint are not correct. The 1 st defendant states that the commissioner has relied on relevant decision and come to the conclusion that the institution is not a religious institution. Hence, the contention made in the plaint are not correct. The 3rd defendant in collaboration with one Doctor Saravanan who was the earlier Chairman of the Thirupani Committee who was wielding considerable influence over the then Government in saddle was responsible for the destruction of the Samadhi of Srimathi Pamban Swamigal and this itself clearly manifest the real intention of the Department. Therefore, the first defendant prays for dismissal of the suit.