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K.Neelamega Bhattachariyar. Vs. the Commissioner and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai High Court
Decided On
Case NumberW.P.No.11593 of 2012 and M.P.Nos.1 and 2 of 2012
Judge
ActsTamil Nadu Hindu Religious and Charitable Endowment Act - Section 55 (2), 28; Tamil Nadu Hindu Religious Institutions (Officers and Servants) Service Rules, 1964 - Rule 33, 5; Constitution of India - Articles 226
AppellantK.Neelamega Bhattachariyar
RespondentThe Commissioner and anr.
Appellant AdvocateMr.T.V.Ramanujam, Adv.
Respondent AdvocateMr.A.Navaneetha Krishnan, Adv.
Excerpt:
[k.chandru, j.] tamil nadu hindu religious and charitable endowment act - section 55 (2), 28 -- traditionally the petitioner's family has right to perform poojas and stanikam services in the temple without any payment. the lower appellate court had confirmed the findings of the trial court. the supreme court had rejected the case of the temple management vide judgment in arulmighu devanathaswamy temple v. neelamega bhattachariar reported in (2001) 9 scc 125. bringing priest from outside temple is contrary to temple agamas and will pollute the sanctity of the temple. thirdly, the petitioner cannot maintain the writ petition directly before this court......on appeal before the division bench in w.a.no.424 of 1999 by dr.s.viswanatha sivachariyar. the writ appeal was also dismissed by the division bench vide order dated 11.3.1999. therefore, the learned advocate general contended that the petitioner's writ petition should be dismissed as there is no case made in his favour and that the earlier findings of the lower courts in the suit filed by the petitioner will also operate as res judicata against the petitioner.12. however, mr.t.v.ramanujam, learned senior counsel submitted that the petitioner is the hereditary archaka and that the rule relating to the tamil nadu hindu religious institutions (officers and servants) service rules, 1964 will not apply as he is not a temple servant. he also placed reliance upon a division bench judgment.....
Judgment:

This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the entire records pertaining to issuance of the order dated 19.04.2012 passed by the second respondent herein and quash the same and to forbear the respondents herein not to interfere with functioning of the petitioner as Sthanic Archaka in Sri Devanatha Swamy Temple, Thiruvandipuram, Cuddalore District.

ORDER

1. The writ petitioner claiming to be an Archakar of Arulmighu Devanathaswamy Temple at Thiruvandipuram in Cuddalore District has come forward to file the present writ petition, seeking to challenge an order of the second respondent, i.e., Assistant Commissioner, Hindu Religious and Charitable Endowment Department, Cuddalore, dated 19.04.2012 and seeks to set aside the same with consequential direction not to interfere with the functioning of the petitioner as Sthanic / Archaka of the said temple.

2. When the matter came up on 24.04.2012, this court directed the counsel for respondents to get instructions. Accordingly, on behalf of respondents, learned Advocate General appeared. Heard the arguments of Mr.T.V.Ramanujam, learned Senior Counsel leading Mr.C.Umashankar, learned counsel for petitioner and learned Advocate General assisted by Mr.S.Kandaswamy, learned Special Government Pleader (HR&CE Department) and Mr.M.Sundar, learned counsel appearing for the second respondent.

3. By the impugned order, dated 19.04.2012, the Thakkar (fit person of the temple) informed the petitioner that since the petitioner has crossed the age of 60 years and also gave room for several complaints, he was relieved from duty by the Thakkar on 18.04.2012. He was directed to hand over the charge to one Narasimha Battachariar. But since there was also complaint against the said Narasimha Battachariar, it may not be proper to entrust the work to him. Therefore, the order dated 18.04.2012 was cancelled and a revised order dated 19.04.2012 was issued. By the revised order, the petitioner was relieved from duty with effect from 19.04.2012. Further, Narasimha Battachariar, S/o.Neelamega Battachariar and one Venkatakrishnan, S/o.Narasimha Battachariar were directed not to interfere with the temple poojas. The petitioner was directed to hand over costly jeweleries and clothes as well as offerings received from devotees to one Dwarakanada Battachariar. The said Dwarakanada Battachariar was directed to take over the charge from the petitioner until further order. After taking charge, the list of charge handed over and charge taken were directed to be handed over to the executive Officer of the temple.

4. In the earlier order dated 18.04.2012, it was stated that the petitioner had crossed the age of 60 years and there was no scope for employing such people as a worker of the temple. In fact, the petitioner had reached the age of 80 years. Hence he was retired from service in public interest. It was this order which was revised subsequently which became the subject matter of challenge in the writ petition.

5. According to the petitioner, he is the Stanika Archakar of the temple for the past 70 years. His father and forefathers were Archakars. Traditionally the petitioner's family has right to perform poojas and stanikam services in the temple without any payment. When a dispute arose between his grand father and the management committee of the temple with reference to installation of Hundial inside the temple by the temple management committee, a suit was filed before the District Munsif Court, Cuddalore being O.S.No.868 of 1896. The said suit had ended in favour of the petitioner's grand father. The temple management instead of enhancing the revenue of the temple started to put some spokes to the earlier order passed by the court. The Archakas in the temple were threatened not to collect any offerings from the devotees. The devotees were prevented from giving offerings in the Archakas plates and cups on it. The HR&CE Commissioner had filed O.P.No.88 of 1951 on the file of the Sub judge, Cuddalore to set aside the scheme framed for administering the temple, which was earlier settled in O.S.No.6 of 1930. On 13.04.1955, a scheme was formulated and modified. The said scheme was challenged by the HR&CE Commissioner in Appeal No.265 of 1955. By a judgment dated 3.3.1957, the scheme was modified with reference to collection of offerings in the plates and cups by the petitioner's father as well as the custody of jewels belonged to the Deity. Aggrieved by the modification, the petitioner's father had filed an appeal before this court being L.P.A.No.124 of 1959. There was further modification of the scheme on 21.01.1962. The scheme with reference to paragraph 2(c) was modified. It is the amended scheme which is in force.

6. The amended scheme reads as follows:

 2.(a) that the Archaka shall have the exclusive right to receive the offerings in kind that is in the shape of articles of gold and silver offered to the deity in the said Devanathaswamy Temple in open cups and plates and he shall then account for the same to the trustees;

2.(b) that he shall have no right whatsoever in the said offerings in kind in the shape of jewels or ornaments intended for the deity;

2.(c) that he shall be entitled to the offerings particularly intended for him for doing archana or aradhana or whatever form of assistance he may render in the conduct or worship that is intended for the benefit of the devotees.

7. The temple management some how wanted to deprive the petitioner's right to take away the offerings made by devotees. The petitioner is neither a paid servant nor a person appointed by respondents. Once again during the year 1998, the temple management had attempted to install a Hundial inside the temple precincts contrary to the scheme referred to above. Even earlier, a suit in O.S.No.512 of 1969 was filed. The trial court held that if the Hundial is installed without any general or special purpose, that will amount to acting against the scheme. The lower appellate court had confirmed the findings of the trial court. This court also upheld the order which finally made the temple management to go to the Supreme Court. The Supreme Court had rejected the case of the temple management vide judgment in Arulmighu Devanathaswamy Temple v. Neelamega Bhattachariar reported in (2001) 9 SCC 125. In paragraph 12, the Supreme Court had observed as follows:

 12. Shri K. Ramamurthi, learned Senior Advocate appearing for the respondent submitted that the Temple has hardly any income as is expressly admitted by the appellant himself in the course of written statement. No salary is paid to the respondent. However, he has to perform the pooja in accordance with the Shastras applicable to the Temple, which involve a good deal of expenditure apart from the fact that the respondent has to sustain himself and, therefore, he needs funds which are offered by the devotees and such offerings are made within the Temple and in those circumstances in the scheme suit it was made clear that he is entitled to take those offerings. If the hundial is installed within the temple precincts, the effect would be that instead of giving offerings to the Archaka, the offerings would be made in the hundial and it will not be possible to find out whether it is for any specific or general purpose such offerings have been made. It was in those circumstances, the trial court, the first appellate court and the High Court have concurrently come to the conclusion that the offerings could not have been collected in hundial by the appellant. Undoubtedly, as had been done on the previous occasion, hundial can be kept for any specific purpose as made clear in the scheme and that right is in no way affected by the decree affirmed by the High Court.

8. It is the case of the petitioner that the temple management had found yet another method to ease out the petitioner and therefore, relieved him from service on the specious plea that he had reached the age of superannuation just before the Maha Samprokshanam which was scheduled to begin on 22.04.2012 and by the impugned order dated 19.04.2012, the petitioner was sent out of service without any justification. A criminal case was also registered against certain persons for preventing outside Archakas being nominated to perform poojas of the temple. According to the petitioner, the impugned order is without jurisdiction and no enquiry was conducted. It was passed to wreak vengeance on the petitioner and his family. Since the petitioner was holding the post of Stanik Archakar and he was not appointed by the respondent HR&CE, there is no scope of relieving him from service. Bringing priest from outside temple is contrary to temple Agamas and will pollute the sanctity of the temple. The petitioner's service cannot be terminated at the whims and fancies of the temple authorities.

9. Per contra, Mr.A.Navaneetha Krishnan, learned Advocate General contended that as to whether the petitioner is entitled to continue as Archaka became the subject matter of suit in O.S.No.205 of 1996. In that suit, the petitioner had asked for return of the amount collected by the temple by way of Kanikkai. The declaratory suit was tried by the District Munsif Court, Cuddalore. By a judgment and decree dated 28.10.1997, the suit was dismissed without granting any relief. The trial court while framing issues found whether the petitioner being plaintiff is entitled for any declaratory relief. In the operative portion of the judgment, the trial court held that the petitioner cannot have any right to function as Arckakar or to collect the amount from the offerings, especially after abolition of hereditary right by an Amendment Act 2 of 1971. Therefore, the petitioner's right as hereditary archaka itself has been abolished. As against that judgment and decree, the petitioner had preferred an appeal before the lower appellate court being A.S.No.4 of 1999. The Sub Court, Vridhachalam by a judgment and decree dated 20.09.1999 had dismissed the appeal suit and confirmed the judgment passed by the trial court. As against the order of the courts below, the petitioner had preferred a second appeal being S.A.No.702 of 2000. Though the second appeal is still pending before this court, no interim order was granted in favour of the petitioner.

10. In ground No.15 of the Memorandum of grounds of appeal, the petitioner had raised the following ground :

 15. The Courts below erred in holding that the plaintiff was not a Hereditary Archaka when the plaintiff did not seek such a relief and raised no issue with regard to it.

11. Therefore, having raised triable issue and lost it before the courts below and there being no interim order, the petitioner's contentions cannot be accepted. It is also brought to the notice of this court that in an identical circumstance as to whether the age of retirement can be enforced against persons after attaining the age of 60 years even though they were working as Archakas in the temple came to be considered by this court in a case relating to Dr.S.Viswanatha Sivachariyar Vs. The Special Commissioner and Commissioner for HR&CE, Chennai and another in W.P.No.3329 of 1999. The said writ petition filed by a hereditary archaka was dismissed by this court on 03.03.1999 by holding that the age of superannuation can be applied and persons can be relieved from service. The said judgment was taken on appeal before the division bench in W.A.No.424 of 1999 by Dr.S.Viswanatha Sivachariyar. The writ appeal was also dismissed by the division bench vide order dated 11.3.1999. Therefore, the learned Advocate General contended that the petitioner's writ petition should be dismissed as there is no case made in his favour and that the earlier findings of the lower courts in the suit filed by the petitioner will also operate as res judicata against the petitioner.

12. However, Mr.T.V.Ramanujam, learned Senior Counsel submitted that the petitioner is the hereditary archaka and that the rule relating to the Tamil Nadu Hindu Religious Institutions (Officers and Servants) Service Rules, 1964 will not apply as he is not a temple servant. He also placed reliance upon a division bench judgment of this court in The Executive Officer, Arulmighu Kopudai Nayagi Amman Thirukovil, Karaikudi, Sivagangai District Vs. A.Sankaran @ Vembu Gurukkal reported in 2004-2-L.W. 598 and referred to the following passage found in paragraph 5 which reads as follows:

 5.We are not impressed by this document at all for the simple reason that by this document, the respondent cannot be deprived of his rights if he has those rights spelt out earlier and which rights are saved specifically by Rule 33 of the Tamil Nadu Hindu Religious and Charitable Endowments Rules. Rule 33 is very clear. The learned Single Judge has very correctly applied Rule 33 to the matter and has held that since the original petitioner was a hereditary archaga, his rights could not be jeopardised by making Rule 5 of the Rules applicable to him. In short, the learned Judge has held and in our opinion, rightly that by taking recourse to Rule 5, the said archaga could not be asked to retire. The judgment is absolutely correct.

13. Per contra, Mr.M.Sundar, learned counsel for the fit person contended that Rule 5 of the Tamil Nadu Hindu Religious Institutions (Officers and Servants) Service Rules,1964 will apply to him. As per rules, a person will have to retire from service after 60 years of age. Explanation to Section 55 of the Tamil Nadu Hindu Religious and Charitable Endowment Act makes it clear that the term servant will include even Archaka and Poojari. Similar question was considered in the case of Dr.S.Viswanatha Sivachariyar as referred to by the learned Advocate General. The hereditary principle of appointment of Archakas was done away by the Amendment Act 2 of 1971. When that amendment was challenged before the Supreme Court, the Supreme Court had upheld the validity of the amendment vide judgment in Seshammal v. State of Tamil Nadu reported in (1972) 2 SCC 11 and in paragraphs 21 and 22 it was observed as follows :

 21........ That the son of an Archaka or the son's son has been continued in the office from generation to generation does not make any difference to the principle of appointment and no such hereditary Archaka can claim any right to the office. See Kali Krishan Ray v. Makhan Lal Mookerjee11, Nanabhai Narotamdas v. Trimbak Balwant Bhandare12 and Maharanee Indurjeet Kaur v. Chundemun Misser13. Thus the appointment of an Archaka is a secular act and the fact that in some temples the hereditary principle was followed in making the appointment would not make the successive appointments anything but secular. It would only mean that in making the appointment the trustee is limited in respect of the sources of recruitment. Instead of casting his net wide for selecting a proper candidate, he appoints the next heir of the last holder of the office. That after his appointment the Archaka performs worship is no ground for holding that the appointment is either a religious practice or a matter of religion.

22. In view of sub-section (2) of Section 55, as it now stands amended, the choice of the trustee in the matter of appointment of an Archaka is no longer limited by the operation of the rule of next-in-line of succession in temples where the usage was to appoint the Archaka on the hereditary principle. The trustee is not bound to make the appointment on the sole ground that the candidate, is the next-in-line of succession to the last holder of office. To that extent, and to that extent alone, the trustee is released from the obligation imposed on him by Section 28 of the principal Act to administer the affairs in accordance with that part of the usage of a temple which enjoined hereditary appointments. The legislation in this respect, as we have shown, does not interfere with any religious practice or matter of religion and, therefore, is not invalid.

14.The learned counsel for the second respondent further submitted that the petitioner's second appeal is still pending. Therefore, the petitioner cannot have second round of attack having lost the battle before the civil court. He further submitted that as against the order passed by the second respondent, the petitioner has remedy by way of an appeal and review and that the temple archaka cannot have a direct access to this court by way of a writ petition under Article 226 of the Constitution.

15.The contentions raised by the respondents are well founded. This court is not inclined to entertain the writ petition for more than one reason. The very fact whether an hereditary archaka is entitled to continue in service itself is a subject matter of civil litigation and in the second appeal, the petitioner has not got any relief. Secondly, it cannot be said that being an Archaka is a service in perpetuity. The petitioner can render it subject to regulatory control of the HR&CE Department. Thirdly, the petitioner cannot maintain the writ petition directly before this court. Unless he availed the remedy by way of an appeal or revision and thereafter challenges an order of the authority, the writ petition is not maintainable. The Supreme Court decision relied on by the petitioner in Arulmighu Devanathaswamy Temple (cited supra) has no relevance to the case on hand.

16. In the light of the above, the writ petition will stand dismissed. No costs. Consequently connected miscellaneous petitions stand closed.


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