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TMI Blog2014 (1) TMI 1710X X X X Extracts X X X X X X X X Extracts X X X X ..... Civil Appeal No. 10620/2013, the appellant has raised the issue of violation of the constitutional rights protected under Article 26 of the Constitution of India, 1950 (hereinafter referred to as 'Constitution') in relation to the claim by Podhu Dikshitars (Smarthi Brahmins) to administer the properties of the Temple in question dedicated to Lord Natraja. The same gains further importance as it also involves the genesis of such pre-existing rights even prior to the commencement of the Constitution and the extent of exercise of State control under the statutory provisions of The Madras Hindu Religious and Charitable Endowments Act 1951 (hereinafter referred to as the 'Act 1951') as well as the Tamil Nadu Hindu Religious and Charitable Endowments Act 1959 (hereinafter referred to as the 'Act 1959'). Civil Appeal No. 10621/2013 is on behalf of Podhu Dikshitars claiming the same relief and Civil Appeal No. 10622/2013 has been filed by the appellants supporting the claim of the appellant in Civil Appeal No. 10621/2013. 2. For convenience in addressing the parties and deciding the appeals, we have taken Civil Appeal No. 10620/2013 as the leading appeal. The facts and circumstances givi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsequent thereto, the Commissioner HR&CE passed an order dated 5.8.1987 defining the duties and powers of the Executive Officer, so appointed for the administration of the Temple. G. Aggrieved, the respondent no.6 challenged the said order by filing Writ Petition No.7843 of 1987. The High Court of Madras granted stay of operation of the said order dated 5.8.1987. However, the writ petition stood dismissed vide judgment and order dated 17.2.1997. H. Aggrieved, the respondent no.6 preferred Writ Appeal No.145 of 1997 and the High Court vide its judgment and order dated 1.11.2004 disposed of the said writ appeal giving liberty to respondent no.6 to file a revision petition before the Government under Section 114 of the Act 1959 as the writ petition had been filed without exhausting the statutory remedies available to the said respondent. I. The revision petition was preferred, however, the same stood dismissed vide order dated 9.5.2006 rejecting the contention of the respondent no.6 that the order dated 5.8.1987 violated respondent's fundamental rights under Article 26 of the Constitution observing that by virtue of the operation of law i.e. statutory provisions of Sections 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to manage and administer the Temple and its properties. It was strenuously contended that the High Court committed an error by holding that the earlier judgment of the Division Bench in Marimuthu Dikshitar (Supra) would not operate as res judicata. Therefore, the appeal deserves to be allowed. 4. Per contra, Shri Dhruv Mehta and Shri Colin Gonsalves, learned Senior counsel, and Shri Yogesh Kanna, learned counsel have opposed the appeal contending that no interference is required by this court as the High Court has rightly held that the aforesaid judgment of the Madras High Court or the judgment of this Court in Shirur Mutt case (Supra) would not operate as res judicata even if the earlier dispute had been contested between the same parties and touches similar issues, for the reason that Article 26(d) applies only when the temple/property is owned and established by the 'religious denomination'. In the instant case, the Temple is neither owned by respondent No. 6, nor established by it. Thus, the appeal is liable to be dismissed. Shri Subramonium Prasad, learned Addl. Advocate General appearing for the State and the Statutory authorities has opposed the appeal contending that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct to such modifications by way of amendment or repeal as the Legislative Assembly may make either in the same session or in the next session." 7. Article 26 of the Constitution provides for freedom to manage religious affairs and it reads as under: "26. Freedom to manage religious affairs - Subject to public order, morality and health, every religious denomination or any section thereof shall have the right - (a) to establish and maintain institutions for religious and charitable purposes; (b) to manage its own affairs in matters of religion; (c) to own and acquire movable and immovable property; and (d) to administer such property in accordance with law." (Emphasis added) 8. The word "such" has to be understood in the context it has been used. A Constitution Bench of this Court in Central Bank of India v. Ravindra & Ors., AIR 2001 SC 3095 dealt with the word "such" and held as under: "43. Webster defines "such" as "having the particular quality or character specified; certain, representing the object as already particularised in terms which are not mentioned. In New Webster's Dictionary and Thesaurus, meaning of "such" is given as "of a kind previously ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Constitution Bench of this Court in S. Azeez Basha & Anr. v. Union of India, AIR 1968 SC 662, while dealing with the rights of minority to establish educational institutions, also dealt with the provisions of Article 26 of the Constitution and observed that the words "establish and maintain" contained in Article 26 (a) must be read conjunctively. A 'religious denomination' can only claim to maintain that institution which has been established by it. The right to maintain institutions would necessarily include the right to administer them. The right under Article 26(a) of the Constitution will only arise where the institution is established by a 'religious denomination' and only in that event, it can claim to maintain it. While dealing with the issue of Aligarh Muslim University, this Court rejected the claim of Muslim community of the right to administer on the ground that it had not been established by the Muslim community and, therefore, they did not have a right to maintain the university within the meaning of Article 26(a) of the Constitution. 12. In Khajamian Wakf Estates etc. v. State of Madras etc., AIR 1971 SC 161, the Constitution Bench of this Court held that the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the funds of the math or neglect in its management. The scheme envisages modification or its cancellation thereof, which would indicate that the scheme is of a temporary nature and duration till the evil, which was recorded by the Commissioner after due enquiry, is remedied or a fit person is nominated as mathadhipathi and is recognised by the Commissioner. The 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, endowed or attached to the math or specific endowment." (Emphasis added) Thus, this Court clarified that there cannot be super-session of administration in perpetuity. It is a temporary measure till the evil gets remedied. 14. In the aforesaid backdrop, we shall examine the present appeals. The learned Single Judge while deciding Writ Petition No. 18248/2006 examined the case raising the following question: "Observations of the Division Bench in 1952 (1) MLJ 557 that Podhu Dikshitars are a 'denomination' are to be tested in the light of well-settled principles laid down in various decisions of the Supreme Court." The learned Single Judge as well as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n by the name of Shri Vaishnabas, undoubtedly constitute a religious denomination; and so do the followers of Madhwacharya and other religious teachers. It is a fact well established by tradition that the Udipi Maths were founded by Madhwacharya himself and the trustees and the beneficiaries of these Maths profess to be followers of that teacher. The High Court has found that the Math in question is in charge of the Sivalli Brahmins who constitute a Section of the followers of Madhwacharya.As Art. 26 contemplates not merely a religious denomination but also a Section thereof, the Math or the spiritual fraternity represented by it can legitimately come within the purview of this Article. 16. The other thing that remains to be considered in regard to Art. 26 is, what, is the scope of clause (b) of the Article which speaks of management 'of its own affairs in matters of religion?" The language undoubtedly suggests that there could be other affairs of a religious denomination or a Section thereof which are not matter of religion and to which the guarantee given by this clause would not apply. The question is, where is the line to be drawn between what are matters of religion and w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perties of the Temple which the Matathipathi enjoys in relation to the income from the Mutt and its properties. Therefore, the sections which we held ultra vires in relation to Mutts and Matathipathis will also be ultra vires the State Legislature in relation to Sri Sabhanayakar Temple, Chidambaram and the Podu Dikshitars who have the right to administer the affairs and the properties of the Temple. As we have already pointed out even more than the case of the Shivalli Brahmins, it can be asserted that the Dikshitars of Chidambaram form a religious denomination within the meaning of Article 26 of the Constitution. We certify under Article 132 of the Constitution that it is a fit case for appeal to the Supreme Court. Notification quashed." (Emphasis added) 20. On the basis of the certificate of fitness, the State of Madras preferred Civil Appeal No.39 of 1953 before this Court against the said judgment and order of the Madras High Court, which was heard by the Constitution Bench of this Court on 9.2.1954. However, the said appeal stood dismissed as the State withdrew the notification impugned therein. Relevant part of the order runs as under : "The Appeal and the Civil Miscel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtly on the maxim of Roman jurisprudence "interest reipublicae ut sit finis litium" (it concerns the State that there be an end to law suits) and partly on the maxim "nemo debet bis vexari pro uno et eadem causa" (no man should be vexed twice over for the same cause). Even an erroneous decision on a question of law attracts the doctrine of res judicata between the parties to it. The correctness or otherwise of a judicial decision has no bearing upon the question whether or not it operates as res judicata. (Vide: Shah Shivraj Gopalji v. ED-, Appakadh Ayiassa Bi & Ors., AIR 1949 PC 302; and Mohanlal Goenka v. Benoy Kishna Mukherjee & Ors., AIR 1953 SC 65). 25. In Smt. Raj Lakshmi Dasi & Ors. v. Banamali Sen & Ors., AIR 1953 SC 33, this Court while dealing with the doctrine of res judicata referred to and relied upon the judgment in Sheoparsan Singh v. Ramnandan Singh, AIR 1916 PC 78 wherein it had been observed as under: "........ the rule of res judicata, while founded on ancient precedents, is dictated by a wisdom which is for all time..... Though the rule of the Code may be traced to an English source, it embodies a doctrine in no way opposed to the spirit of the law as expoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emphasise that the application of the doctrine of res judicata to the petitions filed under Art. 32 does not in any way impair or affect the content of the fundamental rights guaranteed to the citizens of India. It only seeks to regulate the manner in which the said rights could be successfully asserted and vindicated in courts of law." 28. In Hope Plantations Ltd. v. Taluk Land Board, Peermade & Anr., (1999) 5 SCC 590, this Court has explained the scope of finality of the judgment of this Court observing as under: "One 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 kind of litigation twice ever because such a procedure should be contrary to consideration of fair play and justice. Rule 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 wrong. When the proceedings have attained finality, parties are bound by the judgment and are estopped from questioning it." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut the same should not be accepted in case it has the effect of unsettling transactions which had been entered into on the basis of those decisions, as reopening past and closed transactions or settled titles all over would stand jeopardized and this would create a chaotic situation which may bring instability in the society. The declaration that "Dikshitars are religious denomination or section thereof" is in fact a declaration of their status and making such declaration is in fact a judgment in rem. 33. In Madan Mohan Pathak & Anr. v. Union of India & Ors., AIR 1978 SC 803, a seven-Judge Bench of this Court dealt with a case wherein the question arose as to whether the order passed by the Calcutta High Court issuing writ of mandamus directing the Life Insurance Corporation of India (hereinafter referred to as L.I.C.) to pay cash bonus for the year 1975-76 to its class 3 and 4 employees in terms of the settlement between the parties was allowed to become final. Immediately after the pronouncement of the judgment, the Parliament enacted the LIC (Modification of Settlement) Act, 1976. The appeal filed against the judgment of Calcutta High Court was not pressed by LIC and the said j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vide: Rajendra Kumar & Ors. v. Rambhai & Ors., AIR 2003 SC 2095). 36. In view of the fact that the rights of the respondent no. 6 to administer the Temple had already been finally determined by the High Court in 1951 and attained finality as State of Madras (as it then was) had withdrawn the notification in the appeal before this Court, we are of the considered opinion that the State authorities under the Act 1959 could not pass any order denying those rights. Admittedly, the Act 1959 had been enacted after pronouncement of the said judgment but there is nothing in the Act taking away the rights of the respondent no. 6, declared by the court, in the Temple or in the administration thereof. 37. The fundamental rights as protected under Article 26 of the Constitution are already indicated for observance in Section 107 of the Act 1959 itself. Such rights cannot be treated to have been waived nor its protection denied. Consequently, the power to supersede the functions of a `religious denomination` is to be read as regulatory for a certain purpose and for a limited duration, and not an authority to virtually abrogate the rights of administration conferred on it. In such a fact-situat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ription of rules to be framed by the State Government under Sections 116 read with Sections 45 and 65, etc. of the Act 1959 indicates that the legislature only intended to regulate and control any incidence of maladministration and not a complete replacement by introducing a Statutory authority to administer the Temple. 42. Section 2(16) CPC defines the term `prescribed` as prescribed by rules. Further, Section 2(18) CPC defines rules as Rules and forms as contained in the First Schedule or made under Section 122 or Section 125 CPC. Sections 122 and 125 CPC provide for power of the High Court to make rules with respect to its own functioning and procedure. Therefore, it appears that when the legislature uses the term `prescribed`, it only refers to a power that has simultaneously been provided for or is deemed to have been provided and not otherwise. Similarly, Section 2(n) of the Consumer Protection Act, 1986 defines prescribed as "prescribed by rules made by the State Government or as the case may be, by the Central Government under the Act". 43. Section 45 of the Act 1959 provides for appointment of an Executive Officer, subject to such conditions as may be prescribed. The ter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fined by the Commissioner would show that the religious affairs have not been touched at all and the trustees and the Executive Officers are jointly managing the temple. The Podhu Dikshitars have not been divested of the properties and it was not the intention of the State Government to remove the trustees altogether, rather the Executive Officers function alongwith the trustees; (c) In any event, the Podhu Dikshitars are trustees in the temple and they have not been divested of their properties. The Executive Officer is only collaborating with the trustees in administering the properties. Their religious activities have not been touched. Neither the powers of the trustees have been suspended nor the Executive Officers have been vested with their powers and the Executive Officers only assist the trustees in management of the temple. It was not the intention to remove the trustees altogether, nor the order of appointment of the Executive Officer suspends the scheme already framed way back in 1939. 46. Be that as it may, the case is required to be considered in light of the submissions made on behalf of the State of Tamil Nadu and particularly in view of the written submissions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CC 336, this Court held: "It is a settled proposition of law that what cannot be done directly, is not permissible to be done obliquely, meaning thereby, whatever is prohibited by law 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". An authority cannot be permitted to evade a law by "shift or contrivance"." (See also: Jagir Singh v. Ranbir Singh, AIR 1979 SC 381; A.P. Diary Dev. Corporation federation v. B. Narsimha Reddy & Ors. AIR 2011 SC 3298; and State of Tamil Nadu & Ors. v. K. Shyam Sunder & Ors. AIR 2011 SC 3470). 49. We would also like to bring on the record that various instances whereby acts of mismanagement/maladministration/ misappropriation alleged to have been committed by Podhu Dikshitars have been brought to our notice. We have not gone into those issues since we have come to the conclusion that the power under the Act 1959 for appointment of an Executive Officer could not have been exercised in the absence of any prescription of circumstances/ conditions in which such an appointment may be made. More so, the order of appointment of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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