(Prayer: Writ Petition filed under Article 226 of Constitution of India, to issue a writ of Certiorarified Mandamus, to call for records and quash the proceedings in Ni.Mu.No.55604/2021 E5 dated 19.07.2021 of the 1st respondent and in Proc.R.C.No.2664/2018/A5 dated 05.08.2021 of the 2nd respondent and further direct the respondents not to interfere with Sri Adhinayaga Perumal Temple as it is a denomination temple (Thenkalai Sri Vaishnava Sampradaya and Vaikanasa Temple).)

The petitioner, claiming to be the President of the Village Committee of Sri Adhinayaga Perumal Temple, Gopurapatti, seeks to quash the proceedings of the respondents 1 and 2 in and to direct the respondents not to interfere with the petitioner temple.

2. I have heard Mr.Elephant G.Rajendran, learned counsel for the writ petitioner and Mr.K.Karthikeyan, learned Government Advocate for the respondents 1 and 2 and Ms.P.Vedhavalli, for Mr.M.Rukmangathan, learned counsel for the 3rd respondent.

3. Mr.Elephant G.Rajendran, learned counsel for the writ petitioner would submit that Sri Adhinayaga Perumal Temple at Gopurapatti village is an ancient Srivaishnavite Temple belongs to Thenkalai Srivaishnava Sampradaya. According to the learned counsel for the writ petitioner, the Thankalai Srivaishnava sect is a denominational sect. He would further state that the temple was built more than 600 years ago and has been in total disuse because of lack of care and consideration. He would further state that in order to restore the temple to good condition, the general public, comprising of Hindus in Gopurapatti village, have come together to collectively contribute for the renovation of the temple.

4. Mr.Elephant G.Rajendran, learned counsel for the petitioner would further state that Kumbabishekam was performed in the year 2009, following Vaikanasa Agama Sastras and the local Hindus in the village have thereafter been maintaining the temple and also conducting regular poojas. He would further state that the very scheme of the Tamil Nadu Religious and Charitable Endowments Act, 1959 (Act 22 of 1959) was to administer the temples that are vested in the trustees and the HR & CE Department cannot poke their nose in the subject temple, which is according to the learned counsel for the petitioner, is a denominational temple. He would further state that even in terms of Rule 14 of the Functioning of the Board of Trustees Rules framed under the HR & CE Act, all matters pertaining to administration of the religious institutions would have to be decided only at the meeting held by the Board of Trustees. He would therefore state that only in order to get over the fact that the temple is a denomination temple and also Rule 14, the impugned order has been passed, appointing a fit person for the temple.

5. Mr.Elephant G.Rajendran, learned counsel for the petitioner would further submit that the Executive Officer of an other temple has been appointed as a fit person for the present temple and it is in violation of the dictum of the Hon'ble Supreme Court in Ratilal Panachand Gandhi's case, reported in AIR 1954 SC 388. He would further state that the Executive Office of Sri Gneelivaneswarar Temple, Tirupaigneeli, who has been appointed as a fit person functions only at the said Sri Gneelivaneswarar Temple and he neither has time nor resources to sit in the petitioner's temple in order to manage the same.

6. Mr.Elephant G.Rajendran, learned counsel for the petitioner would rely on the Parliament adopting the Constitution of India in Hindi as the official version of the Constitution in and by the 58th Amendment of the Constitution of India, inserting Article 394-A. Referring to the Hindi text, Mr.Elephant G.Rajendran, learned counsel for the petitioner would submit that the words 'dharmic sampradaya' mentioned in the Hindi text refer only to a religious denomination and he would therefore state that after 1987, the definition of religious denomination would have to be viewed from a totally different perspective and not in line with the decisions rendered prior to 1987.

7. The learned counsel for the petitioner would therefore state that the petitioner claiming protection under Article 26 as a 'dharmic sampradaya' institution is sufficient to bring them within the definition of 'religious denomination' and consequently, in terms of Section 107 of the Act, the Act itself would not apply to such religious denomination institutions. He would therefore state that such being the position, the Assistant Commissioner did not have the authority to pass the impugned order. He would further state that the temple has an income exceeding Rs.2 lakhs per annum and in terms of the ratio laid down by the Division Bench of this Court in Jalagandeswarar Dharmasthapanam's case, the Assistant Commissioner cannot exercise jurisdiction in respect of a religious institution where the annual income is more than Rs.10,000/-. Therefore, even on this ground, according to the counsel for the petitioner, the impugned order passed by the Assistant Commissioner is without jurisdiction and has to necessarily go.

8. Placing reliance on the decision of the Hon'ble Supreme Court in Dr.Subramanian Swamy's case, the learned counsel for the petitioner would submit that the fit person cannot be appointed, without his period or tenure being mentioned in the order of the proceeding. He would therefore contend that the order even on this ground is ex-facie arbitrary and illegal. In the same context, he would also state that in terms of functioning of the Board of Trustees Rules, moreso, proviso to Rule 2(1) of the Rules framed under the 1959 Act, the maximum period for which a temple can be without a Board of Trustees is only 90 days and therefore, even assuming the Assistant Commissioner had the authority to appoint a fit person, even then the fit person cannot be allowed to continue beyond the period of 90 days. He would therefore submit that the very appointment of the fit person has suffered a natural death and he had become functus officio.

9. Lastly, Mr.Elephant G.Rajendran, learned counsel for the petitioner would contend that the very appointment of fit person is only to achieve what is not possible by the Department directly, namely appointing an Executive Officer of another temple and giving additional charge to such official. In this context, the would rely on the decision of the Constitutional Bench of the Hon'ble Supreme Court in Sri-la-sri Shanmuga Desika Gnanasampantha Pandara Sannati's case, reported in AIR 1965 SC 1683 and contend that as the Hon'ble Supreme Court has clearly held that a Government servant or official of the Department cannot be appointed as the Executive Officer in respect of an another temple, the post is mischievously being characterized as 'fit person'. He would further state that the person appointed also does not qualify to be a trustee under Section 25-A of the Act.

10. Mr.Elephant G.Rajendran, learned counsel for the petitioner would further contend that the respondents have also not produced any scrap of paper to even establish the very appointment of the Executive Officer for the temple in the first place. In support of his contentions, the learned counsel for the petitioner would place reliance on the following decisions:

                          1. The Commissioner, Hindu Religious Endowments, Madras, Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, reported in AIR 1954 SC 282.

                          2. Sri-la-sri Subramanya Desiga Gnanasambada Pandara Sannadhi Trustee of Sri Vaidyanathaswami Temple, Vaitheeswarankoil Vs. State of Madras, reported in AIR 1965 SC 1683.

                          3. Sri Jalakandeswara Dharmasthapanam, Rep., by its Secretary Vs. The Assistant Commissioner, HR & CE Department, Vellore and another, in W.A.No.2856 of 2003 dated 20.08.2008.

                          4. Dr.Subramanian Swamy Vs. State of Tamil Nadu and others, in Civil Appeal No.10620 of 2013 dated 06.01.2014.

                          5. Ratilal Panachand Gandhi Vs. The State of Bombay and others, reported in AIR 1954 SC 388.

11. Per contra, Mr.K.Karthikeyan, learned Government Advocate appearing for the respondents 1 and 2 would first and foremost submit that the petitioner has no locus to even file the writ petition and the temple in question is only a public temple and there has been no declaration of any competent civil, declaring the denominational status of the said temple. In such circumstances, he would submit that the writ petition itself is not maintainable and if at all the writ petitioner is an interested party or aggrieved by the appointment of the fit person, the only remedy open to the petitioner is to make an application before the Joint Commissioner under Section 63 of the Act. He would further state that the respondents have got information that there has been mismanagement of funds collected from the public and only under such circumstances, the proceedings were initiated and the order came to be passed under Section 49 of the Act, appointing a fit person. He would therefore, state that the writ petition is not maintainable.

12. Insofar as the decisions relied on by the learned counsel for the petitioner, Mr.K.Karthikeyan, learned Government Advocate would submit that none of the decisions would apply to the facts of the present case since in all those decisions, there was no dispute that the temple in question was a denominational temple, which is not the case on hand.

13. Ms.P.Vedhavalli, learned counsel appearing for the 3rd respondent would submit that the petitioner has no locus to file the writ petition and the 3rd respondent/fit person has been appointed based on the detailed report sent by the Assistant Commissioner, HR & CE Department, Trichy, as early as on 15.02.2021, recommending to bring the temple under the administration of the Department. A complaint was made before the Department by the villagers that the village Committee have misused and misappropriated funds collected from the villagers and a written complaint was also lodged to the Commissioner, HR & CE Department on 21.05.2018. In furtherance of the complaint, the Assistant Commissioner was directed to conduct an enquiry and submit the report to the Commissioner, HR & CE Department.

14. Ms.P.Vedhavalli, learned counsel for the 3rd respondent would further state that the Assistant Commissioner, Trichy, vide Na.ka.No.2664/2018/A5 dated 05.08.2021, after conducting necessary enquiry, has sent a detailed report to the Commissioner, recommending that the temple be brought under the administration of the Department. She would therefore state that it is only pursuant to the recommendations of the Assistant Commissioner that the fit person has been appointed in exercise of powers available under Section 49(1) of the Act, that too, for better administration, as well as to protect the temple and its properties.

15. Ms.P.Vedhavalli, learned counsel for the 3rd respondent would further contend that admittedly, the temple is a non-listed temple and the Assistant Commissioner therefore is competent to exercise power under Section 49(1) of the Act and appoint a fit person. She would also reiterate the argument of the learned Government Advocate, Mr.K.Karthikeyan, that the petitioner temple is not a denominational temple and there has been not even a suit filed before the competent civil Court to declare the denomination character of the temple or any proceedings before the authorities functioning under the Act under Section 63 or 64(1). She would therefore state that there is no merit in the writ petition and the claim of the petitioner that he belongs to particular community is totally without any basis whatsoever and wholly unsustainable.

16. I have carefully considered the submissions advanced by the learned counsel on either side.

17. In the affidavit filed in support of the writ petition, the petitioner claims that he is the President of the Village Committee which was formed several decades ago, for the welfare and renovation of the temple in the village. Tall claims are made that the temple was built in 1367 and was not properly maintained resulting in the temple becoming dilapidated and subsequently with the help of public funds, the petitioner has renovated the temple and also performed Kumbabishekam and has been maintaining the temple ever since Kumbabishekan in the year 2009.

18. Photographs of the sorry state of affairs prior to 2008 and the present status after Kumbabishekam in 2009 are enclosed in the typed set of papers. Excepting the said photographs and the impugned proceedings on the file of the respondents 1 and 2, which are under challenge in the present writ petition, not a single document has been filed by the petitioner to fortify their contention that the temple is a denominational temple and therefore, the provisions of the Act are either not applicable to them or that they are entitled to protection under Article 26 of the Constitution of India r/w Section 107 of the Act.

19. It is by now settled law that the denominational temples are also public temples within the definition of a public temple under Section 6 of the Act. However, the Hon'ble Supreme Court as well as this Court have consistently held that the word 'denominational temple' would require three ingredients to be established, namely (i) public temple, (ii) religious denomination and (iii) significant religious tenor, habits, rituals and usages which are imbibed with the religious denomination. Unless all these three ingredients are established, the institution cannot claim the status of being a denominational temple in the first place. The authorities functioning under the Act are not competent to decide whether the public temple is a denominational temple or whether the section of Hindu community forms a religious denomination. It is only the civil courts that are alone competent to decide and declare whether the temple is a denominational temple and whether a section of Hindu community forms a religious denomination, save limited exercise of jurisdiction under Section 64.

20. There is no quarrel with regard to the fact that despite such declaration that the temple is a denominational temple by a competent civil Court, it does not exclude the supervisory powers of the Department from being exercised and merely because the temple has been continuously administered by a particular caste or community would not be sufficient by itself to declare the temple as a denominational temple. Further, even in the case of denominational temples, if there is material evidence of maladministration and mismanagement, then the Department is empowered to conduct enquiry in respect of such maladministration and misappropriation.

21. Coming to the decisions that have been relied on by the learned counsel for the petitioner, in Shirur Mutt's case, cited supra, the Hon'ble Supreme Court held that religious teachers and philosophers have founded different sects and sub-sects of Hindu religion which exist in the country and each of such sects and sub-sects can be brought within the term 'religious denomination' and that in respect of such religious denomination, the authorities cannot take away the right of administration altogether, which would amount to violation of Article 26 of the Constitution of India.

22. In Sri la sri Subramanya Desiga Gnanasambada Pandara Sannadhi's case, cited supra, the Hon'ble Supreme Court held that if a religious institution is mismanaged or maladministered, then under Chapter 6 of the Act, it can be notified, for a prescribed period. This decision is relied on for fortifying the argument of the learned counsel for the petitioner that unless a case has been made out for appointment of an Executive Officer, even the Court cannot justify such appointment, leave alone the Commissioner, HR & CE Department.

23. In Sri Jalakandeswara Dharmasthapanam's case, cited supra, the question was with regard to power of the Assistant Commissioner to pass orders when the annual income of the appellant was more than Rs.40 lakhs. In the said case, it was held by the Division Bench of this Court that the Assistant Commissioner does not have the power to appoint a fit person, if the annual income of the temple is more than Rs.10,000/-. In the present case, though there is a claim by the petitioner that the annual income of the temple is Rs.2 lakhs, I find from the counter affidavit filed by the respondents 1 and 2 that there is no proper accounting and the annual income is less than Rs.10,000/- and therefore, rightly the Assistant Commissioner has exercised jurisdiction. There is absolutely no material brought on record to establish that the temple gets an annual income of more than Rs.10,000/-. Therefore, I am unable to apply the ratio laid down by the Division Bench of this Court in the above mentioned case.

24. In Dr.Subramanian Swamy's case, cited supra, the Hon'ble Supreme Court held that though Section 107 of the Act protects religious denominations and the order appointing the Executive Officer can only be for a prescribed time period and once the evil is remedied, then the management should be handed over to the person concerned immediately. In short, the Hon'ble Supreme Court held that super-session of rights of administration cannot be of permanent and enduring in nature and has to be coterminous with the removal of the ill-effects of maladministration.

25. However, the Hon'ble Supreme Court was dealing with the famous Chidambaram temple which admittedly has been declared as a denominational temple and the issue that was raised before the Hon'ble Supreme Court was only with regard to the constitutional rights which was protected under Article 26 of the Constitution of India to such a denominational institution. Therefore, unless the petitioner in the instant present case is able to satisfy that the temple in question is a religious denominational institution and entitled to protection under Article 26, there is no necessity to even look into Section 107 of the Act, for any other purpose.

26. As already discussed, excepting for the photographs and the two impugned orders, not a single scrap of paper have been filed by the petitioner to show that the temple has been declared as a religious denominational institution. The petitioner cannot assume such status for the temple. Admittedly, it is not even the case of the petitioner that there has been such declaration. Even otherwise, there is no declaration made even by the authorities acting under Section 64 of the Act as well.

27. In the light of the above, I am constrained to agree with the arguments of the learned counsel for the respondents that the petitioner has no locus to file the present writ petition. It is for the petitioner to approach the competent civil court and seek declaration of their denominational status or move the authorities under Section 64 of the Act for suitable declaration, as they may be advised. In the absence of the petitioner establishing that they are a religious denominational institution, the petitioner is not competent to challenge the impugned order passed by the respondent in the instant case.

28. In view of the above, the Writ Petition is dismissed. However, the dismissal of the writ petitioner shall not come in the way of the petitioner approaching the competent civil court/authorities under the Act. No costs. Connected Writ Miscellaneous Petition is closed.