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REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.10620 OF 2013 Dr.

Subramanian Swamy Versus State of Tamil Nadu & Ors. With CIVIL APPEAL NO.10621 OF 2013 Sabhayanagar Temple Versus State of Tamil Nadu & Ors. With CIVIL APPEAL NO.10622 OF 2013 T. Si araman & Ors. Versus State of Tamil Nadu & Ors. Respondents Appellants Respondents Appellant Respondents Appellant

JUDGMENT D . B. S. CHAUHAN! J.

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!.

All these appeals ha e been filed against the impugned

"udgment and order dated !#.$.%&&$ passed in 'rit Appeal No.!(! of %&&$ by the )igh *ourt of +adras affirming the "udgment and order dated %.%.%&&$ of the learned Single ,udge passed in 'rit -etition No.!(%.( of %&&/ re"e0ting the 0laim of the writ petitioner 1 -odhu Di2shitars to administer the Temple. 3n *i il Appeal No. !&/%&4%&!56 the appellant has raised the issue of iolation of the 0onstitutional rights prote0ted under Arti0le %/ of the *onstitution of 3ndia6 !$#& 7hereinafter referred to as 8*onstitution9: in relation to the 0laim by -odhu Di2shitars 7Smarthi ;rahmins: to administer the properties of the Temple in <uestion dedi0ated to =ord Natra"a. The same gains further importan0e as it also in ol es the genesis of su0h pre>e?isting rights e en prior to the 0ommen0ement of the *onstitution and the e?tent of e?er0ise of State 0ontrol under the statutory pro isions of The +adras )indu Religious and *haritable @ndowments A0t !$#! 7hereinafter referred to as the 8A0t !$#!9: as well as the Tamil Nadu )indu Religious and *haritable @ndowments A0t !$#$ 7hereinafter referred to as the 8A0t !$#$9:.

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*i il Appeal No. !&/%!4%&!5 is on behalf of -odhu Di2shitars 0laiming the same relief and *i il Appeal No. !&/%%4%&!5 has been filed by the appellants supporting the 0laim of the appellant in *i il Appeal No. !&/%!4%&!5.

%.

Aor 0on enien0e in addressing the parties and de0iding the

appeals6 we ha e ta2en *i il Appeal No. !&/%&4%&!5 as the leading appeal. The fa0ts and 0ir0umstan0es gi ing rise to the appeal are as underB A. That Sri Sabhanayagar Temple at *hidambaram 7hereinafter

referred to as the 8Temple9: is in e?isten0e sin0e times immemorial and had been administered for a long time by -odhu Di2shitars 7all male married members of the families of Smarthi ;rahmins who 0laim to ha e been 0alled for the establishment of the Temple in the name of =ord Natra"a:. ;. The State of +adras ena0ted the +adras )indu Religious and

*haritable @ndowments A0t6 !$%C 7hereinafter referred to as the 8A0t !$%C9:6 whi0h was repealed by the A0t !$#!. A Notifi0ation

No.D.O.+s.($. dated %(.(.!$#! notifying the Temple to be sub"e0ted

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to the pro isions of *hapter V3 of the A0t !$#! was issued. The said notifi0ation enabled the Do ernment to promulgate a S0heme for the management of the Temple. *. 3n pursuan0e to the same6 the )indu Religious @ndowments

;oard6 +adras 7hereinafter 0alled the 8;oard9: appointed an @?e0uti e Offi0er for the management of the Temple in !$#! ide order dated %(.(.!$#! et0. D. The Di2shitars6 i.e. respondent no./ and4or their prede0essors in

interest 0hallenged the said orders dated %(.(.!$#! and 5!.(.!$#! by filing 'rit -etition nos. 5C$>5(& of !$#! before the +adras )igh *ourt whi0h were allowed ide "udgment and order dated !5.!%.!$#! <uashing the said orders6 holding that the Di2shitars 0onstituted a 8 "#i$i%&' (")%*i)+ti%), and their position is>E> is the Temple was analogous to muttadhipati of a muttF and the orders impugned therein were iolati e of the pro isions of Arti0le %/ of the *onstitution. @. Aggrie ed6 the State of +adras filed appeals before this *ourt6

whi0h stood dismissed ide order dated $.%.!$#. as the notifi0ation was withdrawn by the State>respondents. After the "udgment in the aforesaid 0ase as well as in Th" C%**i''i%)" ! Hi)(& R"#i$i%&'

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E)(%-*")t'! M+( +' .. S i L+/'h*i)( + Ti th+ S-+*i+ %0 S i Shi & M&tt! A3R !$#. S* %(% 7hereinafter referred to as 8 Shi & M&tt C+'"9:6 the A0t !$#! was repealed by the A0t !$#$. Se0tion .# thereof empowers the Statutory Authorities to appoint an @?e0uti e Offi0er to administer the religious institutions. )owe er6 0ertain safeguards ha e been pro ided under Se0tion !&C of the A0t !$#$. A. On 5!.C.!$(C6 the *ommissioner of religious endowment in arious pro isions in0luding

e?er0ise of his power under the A0t !$#$ appointed an @?e0uti e Offi0er. *onse<uent thereto6 the *ommissioner )R&*@ passed an order dated #.(.!$(C defining the duties and powers of the @?e0uti e Offi0er6 so appointed for the administration of the Temple. D. Aggrie ed6 the respondent no./ 0hallenged the said order by

filing 'rit -etition No.C(.5 of !$(C. The )igh *ourt of +adras granted stay of operation of the said order dated #.(.!$(C. )owe er6 the writ petition stood dismissed !C.%.!$$C. ). Aggrie ed6 the respondent no./ preferred 'rit Appeal No.!.# ide its "udgment and order dated ide "udgment and order dated

of !$$C and the )igh *ourt

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!.!!.%&&. disposed of the said writ appeal gi ing liberty to respondent no./ to file a re ision petition before the Do ernment under Se0tion !!. of the A0t !$#$ as the writ petition had been filed without e?hausting the statutory remedies a ailable to the said respondent. 3. The re ision petition was preferred6 howe er6 the same stood

dismissed ide order dated $.#.%&&/ re"e0ting the 0ontention of the respondent no./ that the order dated #.(.!$(C iolated respondent9s fundamental rights under Arti0le %/ of the *onstitution obser ing that by irtue of the operation of law i.e. statutory pro isions of Se0tions .# and !&C of the A0t !$#$6 su0h rights were not a ailable to the respondent no./. 3n this order6 the entire history of the litigation was dis0ussed and it was also pointed out that the @?e0uti e Offi0er had ta2en 0harge of the Temple on %&.5.!$$C and had been loo2ing after the management of the Temple sin0e then. The said order also re ealed that the respondent no./ 0ould not furnish proper a00ounts of mo able and immo able properties of the Temple and re0orded the following finding of fa0tB GThe powers gi en to the @?e0uti e Offi0er6 are the +(*i)i't +ti%) %0 th" T"*1#" and its properties and maintain these in a se0ular manner. )en0e6 the rights of
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the petitioners are not at all affe0ted or interfered with6 in any manner whatsoe er the aim and reason behind the appointment of the @?e0uti e Offi0er is not for remo ing the petitioners who 0all themsel es as trustees to this Temple.H 7@mphasis added:

,.

The respondent no./ preferred 'rit -etition No.!(%.( of %&&/

for setting aside the order dated $.#.%&&/ whi0h was dismissed by the )igh *ourt ide "udgment and order dated %.%.%&&$ obser ing that the "udgment referred to hereinabo e in 'rit -etition 7*: Nos. 5C$>5(& of !$#! titled M+ i*&th& Di/'hit+ .. Th" St+t" %0 M+( +' 2 A) .6 reported in !$#% 7!: +=, ##C6 wherein it was held that Di2shitars were a 8religious denomination96 would not operate as res judicata. I. Aggrie ed6 the respondent no./ filed 'rit Appeal No.!(! of

%&&$. The present appellant Dr. Subramanian Swamy was allowed by the )igh *ourt to be impleaded as a party. The 'rit Appeal has been dismissed ide impugned "udgment and order dated !#.$.%&&$. )en0e6 these appeals.

5.

The appellant>in>person has submitted that Arti0le %/ of the

*onstitution 0onfers 0ertain fundamental rights upon the 0itiJens and parti0ularly6 on a 8religious denomination9 whi0h 0an neither be ta2en
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away nor abridged.

3n the instant 0ase6 the Di2shitars had been

de0lared by this *ourt6 in a lis between Di2shitars and the State and the Religious @ndowments *ommissioner6 that they were an a02nowledged Kreligious denomination9 and in that 0apa0ity they had a right to administer the properties of the Temple. Though in iew of the pro isions of Se0tion .# read with Se0tion !&C of the A0t !$#$6 the State may ha e a power to regulate the a0ti ities of the Temple6 but la02s 0ompeten0e to di est the Di2shitars from their right to manage and administer the Temple and its properties. 3t was strenuously 0ontended that the )igh *ourt 0ommitted an error by holding that the earlier "udgment of the Di ision ;en0h in M+ i*&th& Di/'hit+ 7Supra: would not operate as res judicata. Therefore6 the appeal deser es to be allowed.

..

-er 0ontra6 Shri Dhru

+ehta and Shri *olin Donsal es6

learned Senior 0ounsel6 and Shri Logesh Ianna6 learned 0ounsel ha e opposed the appeal 0ontending that no interferen0e is re<uired by this 0ourt as the )igh *ourt has rightly held that the aforesaid "udgment of the +adras )igh *ourt or the "udgment of this *ourt in Shi & M&tt 0ase 7Supra: would not operate as res judicata e en if the earlier

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dispute had been 0ontested between the same parties and tou0hes similar issues6 for the reason that Arti0le %/7d: applies only when the temple4property is owned and established by the 8religious denomination9. 3n the instant 0ase6 the Temple is neither owned by respondent No. /6 nor established by it. Thus6 the appeal is liable to be dismissed. Shri Subramonium -rasad6 learned Addl. Ad o0ate Deneral appearing for the State and the Statutory authorities has opposed the appeal 0ontending that the @?e0uti e Offi0er has been appointed to assist the -odhu Di2shitars and to wor2 in 0ollaboration with them and the said respondent has not been di ested of its powers at all6 so far as the religious matters are 0on0erned. Thus6 the matter should be e?amined 0onsidering these aspe0ts. #. 'e ha e 0onsidered the ri al submissions made by learned

0ounsel for the parties and perused the re0ord. /. ;efore entering into the merits of the 0ase6 it may be rele ant to

refer to the rele ant statutory pro isions.

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Se0tion %C of the A0t !$#$ pro ides that the trustee would be bound to obey all lawful orders issued by the Do ernment or the statutory authorities. Se0tion .# of the A0t !$#$ pro ides for appointment and duties of @?e0uti e Offi0er and rele ant part thereof readsB G7!: Notwithstanding anything 0ontained in this A0t6 the *ommissioner may appoint6 sub"e0t to su0h 0onditions as may be pres0ribed6 an @?e0uti e Offi0er for any religious institution other than a +ath or a spe0ifi0 endowment atta0hed to a +ath. 7%: The @?e0uti e Offi0er shall e?er0ise su0h powers and dis0harge su0h duties as may be assigned to him by the *ommissioner. -ro ided that only su0h powers and duties as appertain to the administration of the properties of the religious institutions referred to in sub>se0tion 7!: shall be assigned to the e?e0uti e offi0er. ??? ??? ??? ???

On the other hand6 Se0tion !&C of the A0t !$#$ pro ides that the A0t would not affe0t the rights guaranteed under Arti0le %/ of the *onstitution. 3t readsB GNothing 0ontained in this A0t shall6 sa e as otherwise pro ided in Se0tion !&/ and in *lause 7%: of Arti0le %# of the *onstitution6 be deemed to 0onfer any power or impose any duty in 0ontra ention of the rights

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0onferred on any religious denomination or any Se0tion thereof by Arti0le %/ of the *onstitution.H Se0tion !!/ of the A0t !$#$ reads as underB G!!/. P%-" t% *+/" &#"'> 7!: The Do ernment may6 by notifi0ation6 ma2e rules to 0arry out the purposes of this A0t. 7%: 'ithout pre"udi0e to the generality of the foregoing power6 su0h rules may pro ide for> 7i: all matters e?pressly re<uired or allowed by this A0t to be pres0ribedF ?? ?? ??

75: All rules made and all notifi0ations issued under this A0t shall6 as soon as possible after they are made or issued6 be pla0ed on the table of the =egislati e Assembly and shall be sub"e0t to su0h modifi0ations by way of amendment or repeal as the =egislati e Assembly may ma2e either in the same session or in the ne?t session.H

C.

Arti0le %/ of the *onstitution pro ides for freedom to manage

religious affairs and it reads as underB G%/. Areedom to manage religious affairs > Sub"e0t to publi0 order6 morality and health6 e ery religious denomination or any se0tion thereof shall ha e the right 1 7a: to establish and maintain institutions for religious and 0haritable purposesF 7b: to manage its own affairs in matters of religionF 70: to own and a0<uire mo able and immo able propertyF and
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7d: to administer '&3h property in a00ordan0e with law.H 7@mphasis added:

(.

The word Gsu0hH has to be understood in the 0onte?t it has been

used. A *onstitution ;en0h of this *ourt in C")t +# B+)/ %0 I)(i+ .. R+.i)( + 2 O '.6 A3R %&&! S* 5&$# dealt with the word Gsu0hH and held as underB 43. Webster defines "such" as "having the particular quality or character specified; certain, representing the object as already particularised in terms hich are not mentioned. !n "e Webster#s $ictionary and %hesaurus, meaning of "such" is given as "of a &ind previously or about to be mentioned or implied; of the same quality as something just mentioned 'used to avoid the repetition of one ord t ice in a sentence(; of a degree or quantity stated or implicit; the same as something just mentioned 'used to avoid repetition of one ord t ice in a sentence(; that part of something just stated or about to be stated". %hus, generally spea&ing, the use of the ord "such" as an adjective prefi)ed to a noun is indicative of the draftsman#s intention that he is assigning the same meaning or characteristic to the noun as has been previously indicated or that he is referring to something hich has been said before. %his principle has all the more vigorous application hen the t o places employing the same e)pression, at earlier place the e)pression having been defined or characterised and at the latter place having been qualified by use of the ord "such", are situated in close pro)imity.*

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7See alsoB O*4+#i/+ D+' 2 A) . .. H&#i'+ Sh+- 6 A3R %&&% S* !/(#:.

$.

The aforesaid pro isions ma2e it 0lear that the rights of the

8denominational religious institutions9 are to be preser ed and prote0ted from any in asion by the State as guaranteed under Arti0le %/ of the *onstitution6 and as statutorily embodied in Se0tion !&C of the A0t !$#$.

!&.

Mndoubtedly6 the ob"e0t and purpose of ena0ting Arti0le %/ of

the *onstitution is to prote0t the rights 0onferred therein on a Kreligious denominationK or a se0tion thereof. )owe er6 the rights 0onferred under Arti0le %/ are sub"e0t to publi0 order6 morality and health and not sub"e0t to any other pro ision of -art 333 of the *onstitution as the limitation has been pres0ribed by the law ma2ers by irtue of Arti0le %# of the *onstitution. The term 8religious denomination9 means 0olle0tion of indi iduals ha ing a system of belief6 a 0ommon organisationF and designation of a distin0t name. The right to administration of property by a 8religious denomination9 would stand on a different footing
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altogether from the right to maintain its own affairs in matters of religion. 7VideB A3h+ 5+ M+h+ +6'h i N+ ")( + P +'+(6i

A)+)(1 +'+(6i M+h+ +6 "t3."t3. .. Th" St+t" %0 G&6+ +t 2 O '.! A3R !$C. S* %&$(F T.M.A. P+i F%&)(+ti%) 2 O '. .. St+t" %0 7+ )+t+/+ 2 O '.! A3R %&&5 S* 5##F and N+##% M+ th+)(+* V"##+#+ 2 O '. .. C%**i''i%)" ! Hi)(& R"#i$i%&' +)( Ch+ it+4#" E)(%-*")t' 2 O '.6 A3R %&&5 S* .%%#:.

!!.

The *onstitution ;en0h of this *ourt in S. A8""8 B+'h+ 2

A) . .. U)i%) %0 I)(i+! A3R !$/( S* //%6 while dealing with the rights of minority to establish edu0ational institutions6 also dealt with the pro isions of Arti0le %/ of the *onstitution and obser ed that the words Gestablish and maintainH 0ontained in Arti0le %/ 7a: must be read 0on"un0ti ely. A 8religious denomination9 0an only 0laim to maintain that institution whi0h has been established by it. The right to maintain institutions would ne0essarily in0lude the right to administer them. The right under Arti0le %/7a: of the *onstitution will %)#5 arise where the institution is established by a 8religious denomination9 and %)#5 in that e ent6 it 0an 0laim to maintain it. 'hile dealing with the issue of Aligarh +uslim Mni ersity6 this *ourt re"e0ted the 0laim of

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+uslim 0ommunity of the right to administer on the ground that it had not been established by the +uslim 0ommunity and6 therefore6 they did not ha e a right to maintain the uni ersity within the meaning of Arti0le %/7a: of the *onstitution.

!%.

3n 7h+6+*i+) W+/0 E't+t"' "t3. .. St+t" %0 M+( +' "t3.!

A3R !$C! S* !/!6 the *onstitution ;en0h of this *ourt held that the religious denomination 0an own6 a0<uire properties and administer them in a00ordan0e with law. 3n 0ase they lose the property or

alienate the same6 the right to administer automati0ally lapses for the reason that property 0eases to be their property. Arti0le %/7d: of the *onstitution prote0ts the rights of 8religious denomination9 to establish and administer the properties as 0lauses 70: and 7d: guarantee a fundamental right to any religious denomination to own6 a0<uire6 establish and maintain su0h properties.

!5.

3n S i S i S i L+/'h+*+)+ 9+t")( &#& 2 O '. .. St+t" %0

A.P. 2 A) .! A3R !$$/ S* !.!.6 this *ourt e?amined the 0onstitutional alidity of some of the pro isions of the Andhra

-radesh *haritable and )indu Religious 3nstitutions and @ndowments

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A0t !$(C. The *ourt also e?amined the ob"e0t of the s0heme framed under Se0tion ## of the said A0t and held as underB ..%hat the power of the Commissioner to frame scheme is not absolute but is conditioned upon reasonable belief on the basis of the report submitted by the $eputy +ommissioner and there must be some material on record for entertaining a reasonable belief that the affairs of the Math and its properties are being mismanaged or that funds are misappropriated or that the mathadhipathi grossly neglected in performing his duties. ,rior enquiry in that behalf is duly made in accordance ith the rules prescribed thereunder. %he members of the committee so appointed shall be the persons ho are genuinely interested in the proper management of the -ath, management of the properties and useful utili.ation of the funds for the purpose of hich the endo ment is created. %hus, the paramount consideration is only proper management of the Math and utilisation of the funds for the purpose of the -ath as per its customs, usage etc.* ' @mphasis added:

The *ourt further heldB /uch a scheme can be only to run day-to-day management of the endo ment and the committee ould be of supervisory mechanism as overall incharge of the -ath.* 7@mphasis added:

As the A0t !$(C did not pro ide the duration for whi0h the s0heme would remain in for0e6 the 0ourt held that Gthe duration of the s0heme thus framed may also be spe0ified either in the original

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s0heme or one upheld with modifi0ation6 if any6 in appeal.H The *ourt heldB 30. %he object of /ection 11 appears to be to remedy mismanagement of the math or misutilisation of the funds of the math or neglect in its management. %he scheme envisages modification or its cancellation thereof, hich ould indicate that the scheme is of a temporary nature and duration till the evil, hich as recorded by the +ommissioner after due enquiry, is remedied or a fit person is nominated as mathadhipathi and is recognised by the +ommissioner. %he scheme is required to be cancelled as soon as the nominated mathadhipathi assumes office and starts administering the math and manages the properties belonging to, endo ed or attached to the math or specific endo ment.* 7@mphasis added: Thus6 this *ourt 0larified that there 0annot be super>session of administration in perpetuity. 3t is a temporary measure till the e il gets remedied.

!..

3n the aforesaid ba02drop6 we shall e?amine the present

appeals. The learned Single ,udge while de0iding 'rit -etition No. !(%.(4%&&/ e?amined the 0ase raising the following <uestionB GObser ations of the Di ision ;en0h in !$#% 7!: +=, ##C that -odhu Di2shitars are a 8denomination9 are to be

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tested in the light of well>settled prin0iples laid down in arious de0isions of the Supreme *ourt.H The learned Single ,udge as well as the Di ision ;en0h made it a pi otal point while dealing with the 0ase.

!#.

The *onstitution ;en0h of this *ourt in Shi & M&tt 7Supra:

0ategori0ally held that a law whi0h ta2es away the right to administer the religious denomination altogether and ests it in any other

authority would amount to a iolation of right guaranteed in 0lause 7d: of Arti0le %/ of the *onstitution. Therefore6 the law 0ould not di est the administration of religious institution or endowment. )owe er6 the State may ha e a general right to "$&#+t" the right of administration of a religious or 0haritable institution or endowment and by su0h a law6 State may also 0hoose to impose su0h restri0tions whereof as are felt most a0ute and pro ide a remedy therefore. 7See alsoB R+ti#+# P+)+3h+)( G+)(hi 2 O '. .. St+t" %0 B%*4+5 2 O '. 6 A3R !$#. S* 5((F and P+))+#+# B+)'i#+# Pitti 2 O '. .. St+t" %0 A.P. 2 A) .! A3R !$$/ S* !&%5:.

!/.

The Shi & M&tt 0ase 7Supra: had been heard by the Di ision

;en0h of the +adras )igh *ourt alongwith M+ i*&th& Di/'hit+


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7Supra:6 and against both the "udgments appeals were preferred before this 0ourt. )owe er6 in the 0ase of respondent no./6 the appeal was dismissed as the State of +adras had withdrawn the impugned notifi0ation6 while in Shi & M&tt 0ase the "udgment 0ame to be deli ered wherein this *ourt held as underB 21. 3s regards 3rt. 40. the first question is, hat is the precise meaning or connotation of the e)pression "religious denomination" and hether a -ath could come ithin this e)pression. %he ord "denomination" has been defined in the 5)ford $ictionary to mean "a collection of individuals classed together under the same name 6 a religious sect or body having a common faith and organisation and designated by a distinctive name". !t is ell &no n that the practice of setting up -aths as centres of theological teaching as started by /hri /an&aracharya and as follo ed by various teachers since then. 3fter /an&ara came a gala)y of religious teachers and philosophers ho founded the different sects and sub sects of the 7indu religion that e find in !ndia at the present day. 8ach one of such sects or sub9sects can certainly be called a religious denomination, as it is designated by a distinctive name, 99in many cases it the name of the founder 999 and has a common faith and common spiritual organi.ation. %he follo ers of :amanuja, ho are &no n by the name of /hri ;aishnabas, undoubtedly constitute a religious denomination; and so do the follo ers of -adh acharya and other religious teachers. !t is a fact ell established by tradition that the <dipi -aths ere founded by -adh acharya himself and the trustees and the beneficiaries of these -aths profess to be follo ers of that teacher. %he 7igh +ourt has found that the -ath in question is in charge of the /ivalli =rahmins ho constitute a /ection of the
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follo ers of -adh acharya.3s 3rt. 40 contemplates not merely a religious denomination but also a /ection thereof, the -ath or the spiritual fraternity represented by it can legitimately come ithin the purvie of this 3rticle. 20. %he other thing that remains to be considered in regard to 3rt. 40 is, hat, is the scope of clause 'b( of the 3rticle hich spea&s of management #of its o n affairs in matters of religion>" %he language undoubtedly suggests that there could be other affairs of a religious denomination or a /ection thereof hich are not matter of religion and to hich the guarantee given by this clause ould not apply. %he question is, here is the line to be dra n bet een hat are matters of religion and hat are not> )) )) ))

44. <nder 3rt. 40'b(, therefore a religious denomination or organi.ation enjoys complete autonomy in the matter of deciding as to hat rites and ceremonies are essential according to the tenets of the religion they hold and no outside authority has any jurisdiction to interfere ith their decision in such matters.*

This *ourt upheld the alidity of Se0tion #( of the A0t !$#! whi0h had been stru02 down by the Di ision ;en0h whi0h is analogous to Se0tion /. of the A0t !$#$.

!C.

3n iew of the pro isions of Se0tions .. and .#7%: of the A0t

!$#$6 the State Do ernment 0an regulate the se0ular a0ti ities without interfering with the religious a0ti ities.

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!(.

The issues in ol ed herein are as to whether Di2shitars

0onstitute a 8religious denomination9 and whether they ha e a right to parti0ipate in the administration of the Temple. 3n fa0t6 both the issues stood finally determined by the )igh *ourt in the earlier "udgment of M+ i*&th& Di/h'it+ ' 7Supra: referred to hereinabo e and6 thus6 do0trine of res judicata is appli0able in full for0e.

!$.

The Di ision ;en0h of +adras )igh *ourt while de0iding the

dispute earlier in M+ i*&th& Di/'hit+ 7Supra:6 tra0ed the history of Di2shitars and e?amined their rights6 et0. The *ourt 0on0ludedB ?oo&ing at it from the point of vie , hether the ,odu $i&shitars are a denomination, and hether their right as a denomination is to any e)tent infringed ithin the meaning of 3rticle 40, it seems to us that it is a clear case, in hich it can safely be said that the Podu Dikshitars ho are /martha =rahmins, form and constitute a religious denomination or in any event, a section thereof. %hey are even a closed body, because no other /martha =rahmin ho is not a Dikshitar is entitled to participate in the administration or in the orship or in the services to @od. It is their e clusive and sole privilege which has been recogni!ed and established for over several centuries. !n the case of /ri /abhanaya&ar %emple at +hidambaram, ith hich e are concerned in this petition, it should be clear from hat e have stated earlier in this judgment, that the position of the
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$i&shitars, labelled trustees of this %emple, is virtually analogous to that of a Matathipathi of a Mutt, e)cept that the ,odu $i&shitars of this %emple, functioning as trustees, ill not have the same dominion over the income of the properties of the %emple hich the -atathipathi enjoys in relation to the income from the -utt and its properties. "herefore, the sections which we held ultra vires in relation to Mutts and Matathipathis will also be ultra vires the #tate $egislature in relation to #ri #abhanayakar "emple, Chidambaram and the Podu Dikshitars who have the right to administer the affairs and the properties of the "emple. 3s e have already pointed out even more than the case of the /hivalli =rahmins, it can be asserted that the $i&shitars of +hidambaram form a religious denomination ithin the meaning of 3rticle 40 of the +onstitution. We certify under 3rticle 234 of the +onstitution that it is a fit case for appeal to the /upreme +ourt. "otification quashed.* 7@mphasis added:

%&.

On the basis of the 0ertifi0ate of fitness6 the State of +adras

preferred *i il Appeal No.5$ of !$#5 before this *ourt against the said "udgment and order of the +adras )igh *ourt6 whi0h was heard by the *onstitution ;en0h of this *ourt on $.%.!$#.. )owe er6 the said appeal stood dismissed as the State withdrew the notifi0ation impugned therein. Rele ant part of the order runs as under B GThe Appeal and the *i il +is0ellaneous -etition abo e mentioned being 0alled on for hearing before this *ourt on the $th day of Aebruary6 !$#. upon hearing the Ad o0ate>Deneral of +adras on behalf of the Appellants
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Page 22

and 0ounsel for the respondents and upon the said ad o0ate>Deneral appearing on behalf of the State of +adras agreeing to withdraw the notifi0ation D.O. +s. No.($. Rural 'elfare dated %(.(.!$#! published in Aort St. Deorge DaJette dated ..$.!$#! in the matter of the Sabhanayagar Temple6 *hidambaram6 *hidambaram Talu26 South Ar0ot Distri0t4the Temple 0on0erned in this appeal4this *ourt doth order that the appeal and the 0i il mis0ellaneous petition abo e mentioned be and the same are hereby dismissed.H

%!.

3t is e ident from the "udgment of the )igh *ourt of +adras6

whi0h attained finality as the State withdrew the notifi0ation6 that the *ourt re0ognisedB a: That Di2shitars6 who are Smarthi ;rahmins6 form and 0onstitute a 8religious denomination9F b: Di2shitars are entitled to parti0ipate in administration of the TempleF and 0: 3t was their e?0lusi e pri ilege whi0h had been re0ognised and established for o er se eral 0enturies.

%%.

3t is not a 0ase to e?amine whether in the fa0ts and

0ir0umstan0es of the 0ase6 the "udgments of this 0ourt in arious 0ases are re<uired to be followed or the ratio thereof is binding in iew of the pro isions of Arti0le !.! of the *onstitution. Rather the sole
23

Page 23

<uestion is whether an issue in a 0ase between the same parties6 whi0h had been finally determined 0ould be negated relying upon interpretation of law gi en subse<uently in some other 0ases6 and the answer is in the negati e. +ore so6 nobody 0an 0laim that the fundamental rights 0an be wai ed by the person 0on0erned or 0an be ta2en away by the State under the garb of regulating 0ertain a0ti ities.

%5.

The s0ope of appli0ation of do0trine of res judicata is in

<uestion. The literal meaning of GresH is Ge erything that may form an ob"e0t of rights and in0ludes an ob"e0t6 sub"e0t>matter or statusH and Gres judicataH literally means Ga matter ad"udged a thing "udi0ially a0ted upon or de0idedF a thing or matter settled by "udgmentsH. G :es judicata pro veritate accipiturH is the full ma?im whi0h has6 o er the years6 shrun2 to mere Gres judicataH6 whi0h means that res judicata is a00epted for truth.

%..

The do0trine 0ontains the rule of 0on0lusi eness of the

"udgment whi0h is based partly on the ma?im of Roman "urispruden0e Ginterest reipublicae ut sit finis litiumH 7it 0on0erns the State that there
24

Page 24

be an end to law suits: and partly on the ma?im G nemo debet bis ve)ari pro uno et eadem causaH 7no man should be e?ed twi0e o er for the same 0ause:. @ en an erroneous de0ision on a <uestion of law attra0ts the do0trine of res judicata between the parties to it. The 0orre0tness or otherwise of a "udi0ial de0ision has no bearing upon the <uestion whether or not it operates as res judicata. 7VideB Sh+h Shi. +6 G%1+#6i .. ED:! A11+/+(h A5i+''+ Bi 2 O '. 6 A3R !$.$ -* 5&%F and M%h+)#+# G%")/+ .. B")%5 7i'h)+ M&/h" 6"" 2 O '. 6 A3R !$#5 S* /#:.

%#.

3n S*t. R+6 L+/'h*i D+'i 2 O '. .. B+)+*+#i S") 2 O '. 6

A3R !$#5 S* 556 this *ourt while dealing with the do0trine of res judicata referred to and relied upon the "udgment in Sh"%1+ '+) Si)$h .. R+*)+)(+) Si)$h6 A3R !$!/ -* C( wherein it had been obser ed as underB AA.. the rule of res judicata, hile founded on ancient precedents, is dictated by a isdom hich is for all timeA.. %hough the rule of the +ode may be traced to an 8nglish source, it embodies a doctrine in no ay opposed to the spirit of the la as e)pounded by the 7indu commentators. ;ijnanesvara and "ila&antha

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Page 25

include the plea of a former judgment among those allo ed by la , each citing for this purpose the te)t of Batyayana, ho describes the plea thus6 #!f a person though defeated at la , sue again, he should be ans ered, CCyou ere defeated formerly". %his is called the plea of former judgment.D... 3nd so the application of the rule by the courts in !ndia should be influenced by no technical considerations of form, but by matter of substance ithin the limits allo ed by la DD

%/.

This *ourt in S+t5+(h5+) Gh%'+# 2 O '. .. S*t. D"% +6i)

D"4i 2 A) .6 A3R !$/& S* $.! e?plained the s0ope of prin0iple of res9judicata obser ing as underB E. %he principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a res is judicata, it shall not be adjudged again. ,rimarily it applies as bet een past litigation and future litigation, When a matter 9 hether on a question of fact or a question of la 9 has been decided bet een t o parties in one suit or proceeding and the decision is final, either because no appeal as ta&en to a higher court or because the appeal as dismissed, or no appeal lies, neither party ill be allo ed in a future suit or proceeding bet een the same parties to canvass the matter again. %his principle of res judicata is embodied in relation to suits in /. 22 of the +ode of +ivil ,rocedure; but even here /. 22 does not apply, the principle of res judicata has been applied by courts for the purpose of achieving finality in litigation. %he result of this is that the original court as ell as any higher court must in any future litigation proceed on the basis that the previous decision as correct.*

26

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A similar iew has been re>iterated by this 0ourt in D+ 5+% 2 O '. .. Th" St+t" %0 U.P. 2 O '.! A3R !$/! S* !.#CF G "+t" C%3hi) D"."#%1*")t A&th% it5 .. L""#+**+ V+#'%) 2 O '.6 A3R %&&% S* $#%F and Bh+)& 7&*+ J+i) .. A 3h+)+ 7&*+ 2 A) .6 A3R %&&# S* /%/.

%C.

The *onstitution ;en0h of this *ourt in A*+#$+*+t"(

C%+#0i"#(' Lt(. 2 A) . .. J+)+1+(+ S+4h+ Chhi)(-+ + 2 O '. 6 A3R !$/. S* !&!56 0onsidered the issue of res judicata appli0able in writ "urisdi0tion and held as underB A%herefore, there can be no doubt that the general principle of res judicata applies to rit petitions filed under 3rticle 34 or 3rticle 440. !t is necessary to emphasise that the application of the doctrine of res judicata to the petitions filed under 3rt. 34 does not in any ay impair or affect the content of the fundamental rights guaranteed to the citi.ens of !ndia. !t only see&s to regulate the manner in hich the said rights could be successfully asserted and vindicated in courts of la .*

%(.

3n H%1" P#+)t+ti%)' Lt(. .. T+#&/ L+)( B%+ (! P"" *+("

2 A) .! 7!$$$: # S** #$&6 this *ourt has e?plained the s0ope of finality of the "udgment of this *ourt obser ing as underB

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5ne important consideration of public policy is that the decision pronounced by courts of competent jurisdiction should be final, unless they are modified or reversed by the appellate authority and other principle that no one should be made to face the same &ind of litigation t ice ever because such a procedure should be contrary to consideration of fair play and justice. :ule of res judicata prevents the parties to a judicial determination from litigating the same question over again even though the determination may even be demonstratedly rong. When the proceedings have attained finality, parties are bound by the judgment and are estopped from questioning it.* 7See alsoB B& ) 2 C%.! C+#3&tt+ .. Th"i E*1#%5""'6 A3R !$#C S* 5(F G.7. D&(+)i 2 O '. .. S.D. Sh+ *+ 2 O '. 6 A3R !$(/ S* !.##F and A'h%/ 7&*+ S i.+'t+. .. N+ti%)+# I)'& +)3" C%. Lt(. 2 O '.6 A3R !$$( S* %&./:.

%$.

A three>,udge ;en0h of this 0ourt in Th" St+t" %0 P&)6+4 ..

B&+ D+' 7+&'h+#! A3R !$C! S* !/C/ 0onsidered the issue and 0ame to the 0on0lusion that if ne0essary fa0ts were present in the mind of the parties and had gone into by the 0ourt6 in su0h a fa0t>situation6 absen0e of spe0ifi0 plea in written statement and framing of spe0ifi0 issue of res judicata by the 0ourt is immaterial.

28

Page 28

5&.

A similar iew has been re>iterated by this 0ourt in U)i%) %0

I)(i+ .. N+)+/ Si)$h! A3R !$/( S* !5C& obser ing as underB %his +ourt in %ulabchand Chhotalal v. #tate of %u&arat, 3!: 2F01 /+ 2213 observed that the provisions of /ection 22 of the +ode of +ivil ,rocedure are not e)haustive ith respect to all earlier decision operating as res judicata bet een the same parties on the same matter in controversy in a subsequent regular suit, and on the general principle of res judicata, any previous decision on a matter in controversy, decided after full contest or after affording fair opportunity to the parties to prove their case by a +ourt competent to decide it, ill operate as res judicata in a subsequent regular suit. !t is not necessary that the +ourt deciding the matter formerly be competent to decide the subsequent suit or that the former proceeding and the subsequent suit have the same subject9matter. %here is no good reason to preclude, such decisions on matters in controversy in rit proceedings under 3rticle 440 or 3rticle 34 of the +onstitution from operating as res judicata in subsequent regular suits on the same matters in controversy bet een the same parties and thus to give limited effect to the principle of the finality of decisions after full contest.*

5!.

3t is a settled legal proposition that the ratio of any de0ision

must be understood in the ba02ground of the fa0ts of that 0ase and the 0ase is only an authority for what it a0tually de0ides6 and not what logi0ally follows from it. GThe 0ourt should not pla0e relian0e on de0isions without dis0ussing as to how the fa0tual situation fits in with the fa0t>situation of the de0ision on whi0h relian0e is pla0ed.H
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5%.

@ en otherwise6 a different iew on the interpretation of the law

may be possible but the same should not be a00epted in 0ase it has the effe0t of unsettling transa0tions whi0h had been entered into on the basis of those de0isions6 as reopening past and 0losed transa0tions or settled titles all o er would stand "eopardiJed and this would 0reate a 0haoti0 situation whi0h may bring instability in the so0iety. The de0laration that GDi2shitars are religious denomination or se0tion thereofH is in fa0t a de0laration of their status and ma2ing su0h de0laration is in fa0t a "udgment in rem.

55.

3n M+(+) M%h+) P+th+/ 2 A) . .. U)i%) %0 I)(i+ 2 O ' .6

A3R !$C( S* (&56 a se en>,udge ;en0h of this *ourt dealt with a 0ase wherein the <uestion arose as to whether the order passed by the *al0utta )igh *ourt issuing writ of mandamus dire0ting the =ife 3nsuran0e *orporation of 3ndia 7hereinafter referred to as =.3.*.: to pay 0ash bonus for the year !$C#>C/ to its 0lass 5 and . employees in terms of the settlement between the parties was allowed to be0ome final. 3mmediately after the pronoun0ement of the "udgment6 the

-arliament ena0ted the =3* 7+odifi0ation of Settlement: A0t6 !$C/. The appeal filed against the "udgment of *al0utta )igh *ourt was not
30

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pressed by =3* and the said "udgment was allowed to be0ome final. This *ourt re"e0ted the 0ontention of the =3* that in iew of the inter ention of legislation6 it was not liable to meet the liability under the said "udgment. The *ourt held that there was nothing in the A0t whi0h nullifies the effe0t of the said "udgment or whi0h 0ould set at naught the "udgment or ta2e away the binding 0hara0ter of the said "udgment against =3*. Thus6 the =3* was liable to ma2e the payment in a00ordan0e with the said "udgment and it 0ould not be absol ed from the obligation imposed by the said "udgment.

5..

This *ourt6 while 0onsidering the binding effe0t of the

"udgment of this *ourt6 in St+t" %0 G&6+ +t 2 A) . .. M . J&'ti3" R.A. M"ht+ ;R"t(.< 2 O '.! A3R %&!5 S* /$56 heldB %here can be no dispute ith respect to the settled legal proposition that a judgment of this +ourt is binding,A..!t is also correct to state that, even if a particular issue has not been agitated earlier, or a particular argument as advanced, but as not considered, the said judgment does not lose its binding effect, provided that the point ith reference to hich an argument is subsequently advanced, has actually been decided. %he decision therefore, ould not lose its authority, "merely because it as badly argued, inadequately considered or fallaciously reasoned". ';ide6 #mt. #omavanti ' (rs. v. "he #tate of Pun&ab ' (rs., 3!: 2F03 /+ 212; )allabhdas Mathuradas
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$akhani ' (rs. v. 3!: 2FEG /+ 2GG4; +.P. ' (rs., 3!: #ettlements, *.P. ' 4GG4 /+ 21FH(.*

Municipal Committee, Malkapur , *mbika Prasad Mishra v. #tate of 2FHG /+ 2E04; and Director of (rs. v. M.,. *pparao ' *nr., 3!:

5#.

The issue 0an be e?amined from another angle. @?planation to

Order N=V336 Rule ! of *ode of *i il -ro0edure6 !$&( 7hereinafter referred to as the 8*-*9: pro ides that if the de0ision on a <uestion of law on whi0h the "udgment of the 0ourt is based6 is re ersed or modified by the subse<uent de0ision of a superior 0ourt in any other 0ase6 it shall not be a ground for the re iew of su0h "udgment. Thus6 e en an erroneous de0ision 0annot be a ground for the 0ourt to underta2e re iew6 as the first and foremost re<uirement of entertaining a re iew petition is that the order6 re iew of whi0h is sought6 suffers from any error apparent on the fa0e of the order and in absen0e of any su0h error6 0i)+#it5 +tt+3h"( t% th" 6&($*")t=% (" 3+))%t 4"

(i't& 4"(. 7VideB R+6")( + 7&*+ 2 O '. .. R+*4h+i 2 O '. 6 A3R %&&5 S* %&$#:.

5/.

3n iew of the fa0t that the rights of the respondent no. / to

administer the Temple had already been finally determined by the

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)igh *ourt in !$#! and attained finality as State of +adras 7as it then was: had withdrawn the notifi0ation in the appeal before this *ourt6 we are of the 0onsidered opinion that the State authorities under the A0t !$#$ 0ould not pass any order denying those rights. Admittedly6 the A0t !$#$ had been ena0ted after pronoun0ement of the said "udgment but there is nothing in the A0t ta2ing away the rights of the respondent no. /6 de0lared by the 0ourt6 in the Temple or in the administration thereof.

5C.

The fundamental rights as prote0ted under Arti0le %/ of the

*onstitution are already indi0ated for obser an0e in Se0tion !&C of the A0t !$#$ itself. Su0h rights 0annot be treated to ha e been wai ed nor its prote0tion denied. *onse<uently6 the power to supersede the

fun0tions of a Kreligious denominationK is to be read as regulatory for a 0ertain purpose and for a limited duration6 and not an authority to irtually abrogate the rights of administration 0onferred on it. 3n su0h a fa0t>situation6 it was not permissible for the authorities to pass any order di esting the said respondent from administration of the Temple and thus6 all orders passed in this regard

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are liable to be held in0onse<uential and unenfor0eable. +ore so6 the "udgments relied upon by the respondents are distinguishable on fa0ts.

5(.

Thus6 in iew of the abo e6 it was not permissible for the )igh

*ourt to assume that it had "urisdi0tion to sit in appeal against its earlier "udgment of !$#! whi0h had attained finality. @ en otherwise6 the )igh *ourt has 0ommitted an error in holding that the said "udgment in M+ i*&th& Di/'hit+ 7Supra: would not operate as res judicata. @ en if the Temple was neither established6 nor owned by the said respondent6 nor su0h a 0laim has e er been made by the Di2shitars6 on0e the )igh *ourt in earlier "udgment has re0ognised that they 0onstituted Kreligious denomination9 or se0tion thereof and had right to administer the Temple sin0e they had been administering it for se eral 0enturies6 the <uestion of re>e?amination of any issue in this regard 0ould not arise.

5$.

Rele ant features of the order passed by the *ommissioner are

that the @?e0uti e Offi0er shall be in0harge of all immo able properties of the institutionF the @?e0uti e Offi0er shall be entitled to the 0ustody of all immo ables6 li esto02 and grainsF the @?e0uti e

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Offi0er shall be entitled to re0ei e all the in0ome in 0ash and 2ind and all offeringsF all su0h in0ome and offerings shall be in his 0ustodyF all the offi0e holders and ser ants shall wor2 under the immediate 0ontrol and superintenden0e of the @?e0uti e Offi0er6 though sub"e0t to the dis0iplinary 0ontrol of the Se0retary of the respondent no./.6 et0.

.&.

Se0tion !!/ of the A0t !$#$ enables the State Do ernment to

frame rules to 0arry out the purpose of the A0t for Gall matters e?pressly re<uired or allowed by this A0t to be 1 "'3 i4"(H. *lause 5 thereof re<uires appro al of the rules by the )ouse of State =egislature. The @?e0uti e Offi0er so appointed by the *ommissioner has to fun0tion as per assigned duties and to the e?tent the *ommissioner dire0ts him to perform.

.!.

3t is submitted by Dr. Swamy that rules ha e to be framed

defining the 0ir0umstan0es under whi0h the powers under Se0tion .# of the A0t !$#$ 0an be e?er0ised. The A0t !$#$ does not 0ontemplate unguided or unbridled fun0tioning. On the 0ontrary6 the pres0ription of rules to be framed by the State Do ernment under Se0tions !!/ read with Se0tions .# and /#6 et0. of the A0t !$#$ indi0ates that the legislature only intended to regulate and 0ontrol any in0iden0e of
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maladministration and not a 0omplete repla0ement by introdu0ing a Statutory authority to administer the Temple.

.%.

Se0tion %7!/: *-* defines the term >1 "'3 i4"(> as pres0ribed

by rules. Aurther6 Se0tion %7!(: *-* defines rules as Rules and forms as 0ontained in the Airst S0hedule or made under Se0tion !%% or Se0tion !%# *-*. Se0tions !%% and !%# *-* pro ide for power of the )igh *ourt to ma2e rules with respe0t to its own fun0tioning and pro0edure. Therefore6 it appears that when the legislature uses the term Kpres0ribedK6 it only refers to a power that has simultaneously been pro ided for or is deemed to ha e been pro ided and not otherwise. Similarly6 Se0tion %7n: of the *onsumer -rote0tion A0t6 !$(/ defines pres0ribed as Gpres0ribed by rules made by the State Do ernment or as the 0ase may be6 by the *entral Do ernment under the A0tH.

.5.

Se0tion .# of the A0t !$#$ pro ides for appointment of an

@?e0uti e Offi0er6 sub"e0t to su0h 0onditions as may be 1 "'3 i4"(. The term 8pres0ribed9 has not been defined under the A0t. -res0ribed means pres0ribed by rules. 3f the word 8pres0ribed9 has not been

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defined spe0ifi0ally6 the same would mean to be pres0ribed in a00ordan0e with law and not otherwise. Therefore6 a parti0ular power 0an be e?er0ised only if a spe0ifi0 ena0ting law or statutory rules ha e been framed for that purpose. 7SeeB M+)%h+ L+# Ch%1 + .. R+i B+h+(& R+% R+6+ S"th Hi +#+#! A3R !$/% S* #%CF Hi)(&'t+) I("+# I)'& +)3" C%. Lt(. .. Li0" I)'& +)3" C% 1% +ti%) %0 I)(i+! A3R !$/5 S* !&(5F M+h+ +'ht + SRTC .. B+4& G%." (h+) R"$&#+ M%t% S" .i3" W+ % + 2 O '.! A3R !$C& S* !$%/F and Bh+ +t S+)3h+ Ni$+* Lt(. 2 A) . .. BPL M%4i#" C"##&#+ Lt(. 2 O '.! 7%&&(: !5 S** #$C:.

...

Shri Subramonium -rasad6 learned AAD6 has brought the

"udgment in M.E. S&4 +*+)i 2 O '. .. C%**i''i%)" ! HR2CE 2 O '.6 A3R !$C/ +ad %/.6 to our noti0e6 wherein the +adras )igh *ourt while dealing with these pro isions held that the *ommissioner 0an appoint an @?e0uti e Offi0er under Se0tion .# e en if no 0onditions ha e been pres0ribed in this regard. 3t may not be possible to appro e this iew in iew of the "udgments of this *ourt referred to in para .! supra6 thus6 an @?e0uti e Offi0er 0ould not ha e been

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appointed in the absen0e of any rules pres0ribing 0onditions sub"e0t to whi0h su0h appointment 0ould ha e been made.

.#.

)owe er6 Shri Subramonium -rasad6 learned AAD6 has

submitted that so far as the alidity of Se0tion .# of the A0t !$#$ is 0on0erned6 it is under 0hallenge in 'rit -etition 7*: No. #.. of %&&$ and the said petition had earlier been tagged with these appeals6 but it has been de>lin2ed and is to be beard after the "udgment in these appeals is deli ered. Thus6 in iew of the stand ta2en by the State before this 0ourt6 going into the issue of alidity of Se0tion .# of the A0t !$#$ does not arise and in that respe0t it has been submitted in written submissions as underB 7a: The s0heme of administration in ;oard9s Order

No.$$C dated (.#.!$55 under the A0t !$%C 0ontained arious pro isions inter9alia that +3ti." *+)+$"*")t would rest in the 0ommittee 0onsisting of nine members who were to be ele0ted from among the -odhu Di2shitars 70lause .:F 7b: At the time of issuing the order of appointment of

@?e0uti e Offi0er6 the -odhu Di2shitars were gi en full opportunity of hearing and the powers and duties of the @?e0uti e Offi0er as defined by the *ommissioner would show that the religious affairs ha e not been tou0hed at
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all and the trustees and the @?e0uti e Offi0ers are "ointly managing the temple. The -odhu Di2shitars h+." )%t 4"") (i."'t"( %0 th" 1 %1" ti"' and it was not the intention of the State Do ernment to remo e the trustees altogether6 rather the @?e0uti e Offi0ers fun0tion alongwith the trusteesF 70: 3n any e ent6 the -odhu Di2shitars are trustees in

the temple and th"5 h+." )%t 4"") (i."'t"( %0 th"i 1 %1" ti"'. The @?e0uti e Offi0er is only 0ollaborating with the trustees in administering the properties. Their religious a0ti ities ha e not been tou0hed. Neither the powers of the trustees ha e been suspended nor the @?e0uti e Offi0ers ha e been ested with their powers and the @?e0uti e Offi0ers %)#5 +''i't th" t &'t""' i) *+)+$"*")t %0 th" t"*1#". 3t was not the intention to remo e the trustees altogether6 nor the order of appointment of the @?e0uti e Offi0er suspends the s0heme already framed way ba02 in !$5$. ./. ;e that as it may6 the 0ase is re<uired to be 0onsidered in light

of the submissions made on behalf of the State of Tamil Nadu and parti0ularly in iew of the written submissions filed on behalf of the State.

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Page 39

.C.

@ en if the management of a temple is ta2en o er to remedy the

e il6 the management must be handed o er to the person 0on0erned immediately after the e il stands remedied. *ontinuation thereafter would tantamount to usurpation of their proprietary rights or iolation of the fundamental rights guaranteed by the *onstitution in fa our of the persons depri ed. Therefore6 ta2ing o er of the management in su0h 0ir0umstan0es must be for a limited period. Thus6 su0h e?propriatory order re<uires to be 0onsidered stri0tly as it infringes fundamental rights of the 0itiJens and would amount to di esting them of their legitimate rights to manage and administer the temple for an indefinite period. 'e are of the iew that the impugned order is liable to be set aside for failure to pres0ribe the duration for whi0h it will be in for0e. Super>session of rights of administration 0annot be of a permanent enduring nature. 3ts life has to be reasonably fi?ed so as to be 0o>terminus with the remo al of the 0onse<uen0es of maladministration. The reason is that the ob"e0ti e to ta2e o er the management and administration is not the remo al and repla0ement of the e?isting administration but to re0tify and stump out the

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0onse<uen0es of maladministration. -ower to regulate does not mean power to supersede the administration for indefinite period. Regulate is defined as to dire0tF to dire0t by rule or restri0tionF to dire0t or manage a00ording to the 0ertain standards6 to restrain or restri0t. The word Kregulate9 is diffi0ult to define as ha ing any 3t is a word of broad import6 ha ing a broad

pre0ise meaning.

meaning and may be ery 0omprehensi e in s0ope. Thus6 it may mean to 0ontrol or to sub"e0t to go erning prin0iples. Regulate has different set of meaning and must ta2e its 0olour from the 0onte?t in whi0h it is used ha ing regard to the purpose and ob"e0t of the legislation. The word Kregulate9 is elasti0 enough to in0lude issuan0e of dire0tions et0. 7VideB 7. R+*+)+th+) .. St+t" %0 T+*i# N+(& 2 A) .! A3R !$(# S* //&F and B+#*" L+- i" 2 C%*1+)5 Li*it"( 2 O '. P+ th+ S+ +thi S") R%5 2 O '.6 7%&!5: ( S** 5.#:

.(.

@ en otherwise it is not permissible for the State4Statutory

Authorities to supersede the administration by adopting any obli<ue40ir0uitous method. 3n S+)t L+# G&1t+ 2 O '. .. M%(" ) C%%1. G %&1 H%&'i)$ S%3i"t5 Lt(. 2 O '.! 7%&!&: !5 S** 55/6 this *ourt heldB

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!t is a settled proposition of la that hat cannot be done directly, is not permissible to be done obliquely, meaning thereby, hatever is prohibited by la to be done, cannot legally be effected by an indirect and circuitous contrivance on the principle of quando aliquid prohibetur, prohibetur et omne per quod devenitur ad illud*. 3n authority cannot be permitted to evade a la by shift or contrivance*.* 7See alsoB J+$i Si)$h .. R+)4i Si)$h! A3R !$C$ S* 5(!F A.P. Di+ 5 D".. C% 1% +ti%) 0"(" +ti%) .. B. N+ 'i*h+ R"((5 2 O ' . A3R %&!! S* 5%$(F and St+t" %0 T+*i# N+(& 2 O '. .. 7. Sh5+* S&)(" 2 O '. A3R %&!! S* 5.C&:.

.$.

'e would also li2e to bring on the re0ord that whereby a0ts of

arious

instan0es

mismanagement4maladministration4

misappropriation alleged to ha e been 0ommitted by -odhu Di2shitars ha e been brought to our noti0e. 'e ha e not gone into those issues sin0e we ha e 0ome to the 0on0lusion that the power under the A0t !$#$ for appointment of an @?e0uti e Offi0er 0ould not ha e been e?er0ised in the absen0e of any pres0ription of 0ir0umstan0es4 0onditions in whi0h su0h an appointment may be made. +ore so6 the order of appointment of the @?e0uti e Offi0er does not dis0lose as for what reasons and under what 0ir0umstan0es his appointment was ne0essitated. @ en otherwise6 the order in whi0h no period of its

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operation is pres0ribed6 is not sustainable being e) facie arbitrary6 illegal and un"ust.

#&.

Thus6 the appeals are allowed. ,udgments4orders impugned are

set aside. There shall be no order as to 0osts.

.........................??????..J. ;DR. B.S. CHAUHAN<

.............????????.?J. ;S.A. BOBDE< N"- D"#hi! J+)&+ 5 6! 201@

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