Dr. Subramanian Swamy Versus State of Tamil Nadu & Ors. Supreme Court- Article 26 of the Constitution of India, 1950, The Madras Hindu Religious and Charitable Endowments Act, 1951, Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959
Supreme Court of India
CIVIL APPEAL NO.10620 OF 2013, CIVIL APPEAL NO.10621 OF 2013, CIVIL APPEAL NO.10622 OF 2013 Judgment Date: Dec 06, 2014
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.10620 OF 2013
Dr. Subramanian Swamy …Appellant
Versus
State of Tamil Nadu & Ors. …Respondents
With
CIVIL APPEAL NO.10621 OF 2013
Sabhayanagar Temple …Appellant
Versus
State of Tamil Nadu & Ors. …Respondents
With
CIVIL APPEAL NO.10622 OF 2013
T. Sivaraman & Ors. …Appellants
Versus
State of Tamil Nadu & Ors. …Respondents
J U D G M E N T
Dr. B. S. CHAUHAN, J.
1. All these appeals have been filed against the impugned judgment
and order dated 15.9.2009 passed in Writ Appeal No.181 of 2009 by the
High Court of Madras affirming the judgment and order dated 2.2.2009
of the learned Single Judge passed in Writ Petition No.18248 of 2006
rejecting the claim of the writ petitioner – Podhu Dikshitars to
administer the Temple.
In 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 giving rise to the appeal are as
under:
A. That Sri Sabhanayagar Temple at Chidambaram (hereinafter
referred to as the ‘Temple’) is in existence since times immemorial
and had been administered for a long time by Podhu Dikshitars (all
male married members of the families of Smarthi Brahmins who claim to
have been called for the establishment of the Temple in the name of
Lord Natraja).
B. The State of Madras enacted the Madras Hindu Religious and
Charitable Endowments Act, 1927 (hereinafter referred to as the ‘Act
1927’), which was repealed by the Act 1951. A Notification
No.G.O.Ms.894 dated 28.8.1951 notifying the Temple to be subjected to
the provisions of Chapter VI of the Act 1951 was issued. The said
notification enabled the Government to promulgate a Scheme for the
management of the Temple.
C. In pursuance to the same, the Hindu Religious Endowments Board,
Madras (hereinafter called the ‘Board’) appointed an Executive Officer
for the management of the Temple in 1951 vide order dated 28.8.1951
etc.
D. The Dikshitars, i.e. respondent no.6 and/or their predecessors
in interest challenged the said orders dated 28.8.1951 and 31.8.1951
by filing Writ Petition nos. 379-380 of 1951 before the Madras High
Court which were allowed vide judgment and order dated 13.12.1951
quashing the said orders, holding that the Dikshitars constituted a
‘religious denomination’ and their position vis-à-vis the Temple was
analogous to muttadhipati of a mutt; and the orders impugned therein
were violative of the provisions of Article 26 of the Constitution.
E. Aggrieved, the State of Madras filed appeals before this Court,
which stood dismissed vide order dated 9.2.1954 as the notification
was withdrawn by the State-respondents. After the judgment in the
aforesaid case as well as in The Commissioner, Hindu Religious
Endowments, Madras v. Sri Lakshmindra Tirtha Swamiar of Sri Shirur
Mutt, AIR 1954 SC 282 (hereinafter referred to as ‘Shirur Mutt Case’),
the Act 1951 was repealed by the Act 1959. Section 45 thereof empowers
the Statutory Authorities to appoint an Executive Officer to
administer the religious institutions. However, certain safeguards
have been provided under various provisions including Section 107 of
the Act 1959.
F. On 31.7.1987, the Commissioner of religious endowment in
exercise of his power under the Act 1959 appointed an Executive
Officer. Consequent 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 45 and 107 of the Act 1959, such rights were not available to
the respondent no.6. In this order, the entire history of the
litigation was discussed and it was also pointed out that the
Executive Officer had taken charge of the Temple on 20.3.1997 and had
been looking after the management of the Temple since then. The said
order also revealed that the respondent no.6 could not furnish proper
accounts of movable and immovable properties of the Temple and
recorded the following finding of fact:
“The powers given to the Executive Officer, are the
administration of the Temple and its properties and maintain
these in a secular manner. Hence, the rights of the petitioners
are not at all affected or interfered with, in any manner
whatsoever the aim and reason behind the appointment of the
Executive Officer is not for removing the petitioners who call
themselves as trustees to this Temple.” (Emphasis added)
J. The respondent no.6 preferred Writ Petition No.18248 of 2006 for
setting aside the order dated 9.5.2006 which was dismissed by the High
Court vide judgment and order dated 2.2.2009 observing that the
judgment referred to hereinabove in Writ Petition (C) Nos. 379-380 of
1951 titled Marimuthu Dikshitar v. The State of Madras & Anr.,
reported in 1952 (1) MLJ 557, wherein it was held that Dikshitars were
a ‘religious denomination’, would not operate as res judicata.
K. Aggrieved, the respondent no.6 filed Writ Appeal No.181 of 2009.
The present appellant Dr. Subramanian Swamy was allowed by the High
Court to be impleaded as a party. The Writ Appeal has been dismissed
vide impugned judgment and order dated 15.9.2009.
Hence, these appeals.
3. The appellant-in-person has submitted that Article 26 of the
Constitution confers certain fundamental rights upon the citizens and
particularly, on a ‘religious denomination’ which can neither be taken
away nor abridged. In the instant case, the Dikshitars had been
declared by this Court, in a lis between Dikshitars and the State and
the Religious Endowments Commissioner, that they were an acknowledged
`religious denomination’ and in that capacity they had a right to
administer the properties of the Temple. Though in view of the
provisions of Section 45 read with Section 107 of the Act 1959, the
State may have a power to regulate the activities of the Temple, but
lacks competence to divest the Dikshitars from their right 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 Executive Officer has been appointed to
assist the Podhu Dikshitars and to work in collaboration with them and
the said respondent has not been divested of its powers at all, so far
as the religious matters are concerned. Thus, the matter should be
examined considering these aspects.
5. We have considered the rival submissions made by learned counsel
for the parties and perused the record.
6. Before entering into the merits of the case, it may be relevant
to refer to the relevant statutory provisions.
Section 27 of the Act 1959 provides that the trustee would be
bound to obey all lawful orders issued by the Government or the
statutory authorities.
Section 45 of the Act 1959 provides for appointment and duties
of Executive Officer and relevant part thereof reads:
“(1) Notwithstanding anything contained in this Act, the
Commissioner may appoint, subject to such conditions as may be
prescribed, an Executive Officer for any religious institution
other than a Math or a specific endowment attached to a Math.
(2) The Executive Officer shall exercise such powers and
discharge such duties as may be assigned to him by the
Commissioner.
Provided that only such powers and duties as appertain to the
administration of the properties of the religious institutions
referred to in sub-section (1) shall be assigned to the
executive officer.
xxx xxx xxx
xxx
On the other hand, Section 107 of the Act 1959 provides that the
Act would not affect the rights guaranteed under Article 26 of the
Constitution. It reads:
“Nothing contained in this Act shall, save as otherwise
provided in Section 106 and in Clause (2) of Article 25 of the
Constitution, be deemed to confer any power or impose any duty
in contravention of the rights conferred on any religious
denomination or any Section thereof by Article 26 of the
Constitution.”
Section 116 of the Act 1959 reads as under:
“116. Power to make rules-
(1) The Government may, by notification, make rules to carry
out the purposes of this Act.
(2) Without prejudice to the generality of the foregoing
power, such rules may provide for-
(i) all matters expressly required or allowed by this Act
to be prescribed;
xx xx xx
(3) All rules made and all notifications issued under this Act
shall, as soon as possible after they are made or issued, be
placed on the table of the Legislative Assembly and shall be
subject 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 or about to be mentioned or implied; of
the same quality as something just mentioned (used to avoid the
repetition of one word twice in a sentence); of a degree or
quantity stated or implicit; the same as something just
mentioned (used to avoid repetition of one word twice in a
sentence); that part of something just stated or about to be
stated". Thus, generally speaking, the use of the word "such" as
an adjective prefixed 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 which has been said before.
This principle has all the more vigorous application when the
two places employing the same expression, at earlier place the
expression having been defined or characterised and at the
latter place having been qualified by use of the word "such",
are situated in close proximity.”
(See also: Ombalika Das & Anr. v. Hulisa Shaw, AIR 2002 SC 1685).
9. The aforesaid provisions make it clear that the rights of the
‘denominational religious institutions’ are to be preserved and
protected from any invasion by the State as guaranteed under Article
26 of the Constitution, and as statutorily embodied in Section 107 of
the Act 1959.
10. Undoubtedly, the object and purpose of enacting Article 26 of
the Constitution is to protect the rights conferred therein on a
`religious denomination` or a section thereof. However, the rights
conferred under Article 26 are subject to public order, morality and
health and not subject to any other provision of Part III of the
Constitution as the limitation has been prescribed by the law makers
by virtue of Article 25 of the Constitution.
The term ‘religious denomination’ means collection of
individuals having a system of belief, a common organisation; and
designation of a distinct name. The right to administration of
property by a ‘religious denomination’ would stand on a different
footing altogether from the right to maintain its own affairs in
matters of religion. (Vide: Acharya Maharajshri Narendra Prasadji
Anandprasadji Maharaj etc.etc. v. The State of Gujarat & Ors., AIR
1974 SC 2098; T.M.A. Pai Foundation & Ors. v. State of Karnataka &
Ors., AIR 2003 SC 355; and Nallor Marthandam Vellalar & Ors. v.
Commissioner, Hindu Religious and Charitable Endowments & Ors., AIR
2003 SC 4225).
11. 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
religious denomination can own, acquire properties and administer them
in accordance with law. In case they lose the property or alienate
the same, the right to administer automatically lapses for the reason
that property ceases to be their property. Article 26(d) of the
Constitution protects the rights of ‘religious denomination’ to
establish and administer the properties as clauses (c) and (d)
guarantee a fundamental right to any religious denomination to own,
acquire, establish and maintain such properties.
13. In Sri Sri Sri Lakshamana Yatendrulu & Ors. v. State of A.P. &
Anr., AIR 1996 SC 1414, this Court examined the constitutional
validity of some of the provisions of the Andhra Pradesh Charitable
and Hindu Religious Institutions and Endowments Act 1987. The Court
also examined the object of the scheme framed under Section 55 of the
said Act and held as under:
“..That 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 Deputy Commissioner 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. Prior
enquiry in that behalf is duly made in accordance with the rules
prescribed thereunder. The members of the committee so
appointed shall be the persons who are genuinely interested in
the proper management of the Math, management of the properties
and useful utilization of the funds for the purpose of which the
endowment is created. Thus, the paramount consideration is only
proper management of the Math and utilisation of the funds for
the purpose of the Math as per its customs, usage etc.”
(Emphasis added)
The Court further held:
“Such a scheme can be only to run day-to-day management of the
endowment and the committee would be of supervisory mechanism as
overall incharge of the Math.”
(Emphasis added)
As the Act 1987 did not provide the duration for which the
scheme would remain in force, the court held that “the duration of the
scheme thus framed may also be specified either in the original scheme
or one upheld with modification, if any, in appeal.” The Court held:
“36. The object of Section 55 appears to be to remedy
mismanagement of the math or misutilisation 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 the Division Bench made it a
pivotal point while dealing with the case.
15. The Constitution Bench of this Court in Shirur Mutt (Supra)
categorically held that a law which takes away the right to administer
the religious denomination altogether and vests it in any other
authority would amount to a violation of right guaranteed in clause
(d) of Article 26 of the Constitution. Therefore, the law could not
divest the administration of religious institution or endowment.
However, the State may have a general right to regulate the right of
administration of a religious or charitable institution or endowment
and by such a law, State may also choose to impose such restrictions
whereof as are felt most acute and provide a remedy therefore. (See
also: Ratilal Panachand Gandhi & Ors. v. State of Bombay & Ors., AIR
1954 SC 388; and Pannalal Bansilal Pitti & Ors. v. State of A.P. &
Anr., AIR 1996 SC 1023).
16. The Shirur Mutt case (Supra) had been heard by the Division
Bench of the Madras High Court alongwith Marimuthu Dikshitar (Supra),
and against both the judgments appeals were preferred before this
court. However, in the case of respondent no.6, the appeal was
dismissed as the State of Madras had withdrawn the impugned
notification, while in Shirur Mutt case the judgment came to be
delivered wherein this Court held as under:
“15. As regards Art. 26. the first question is, what is the
precise meaning or connotation of the expression "religious
denomination" and whether a Math could come within this
expression. The word "denomination" has been defined in the
Oxford Dictionary to mean "a collection of individuals classed
together under the same name : a religious sect or body having a
common faith and organisation and designated by a distinctive
name". It is well known that the practice of setting up Maths as
centres of theological teaching was started by Shri
Sankaracharya and was followed by various teachers since then.
After Sankara came a galaxy of religious teachers and
philosophers who founded the different sects and sub sects of
the Hindu religion that we find in India at the present day.
Each one of such sects or sub-sects can certainly be called
a religious denomination, as it is designated by a distinctive
name, --in many cases it the name of the founder --- and has a
common faith and common spiritual organization. The followers of
Ramanuja, who are known 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
what are not?
xx xx xx
22. Under Art. 26(b), therefore a religious denomination or
organization enjoys complete autonomy in the matter of deciding
as to what rites and ceremonies are essential according to the
tenets of the religion they hold and no outside authority has
any jurisdiction to interfere with their decision in such
matters.”
This Court upheld the validity of Section 58 of the Act 1951
which had been struck down by the Division Bench which is analogous to
Section 64 of the Act 1959.
17. In view of the provisions of Sections 44 and 45(2) of the Act
1959, the State Government can regulate the secular activities without
interfering with the religious activities.
18. The issues involved herein are as to whether Dikshitars
constitute a ‘religious denomination’ and whether they have a right to
participate in the administration of the Temple. In fact, both the
issues stood finally determined by the High Court in the earlier
judgment of Marimuthu Dikhsitars (Supra) referred to hereinabove and,
thus, doctrine of res judicata is applicable in full force.
19. The Division Bench of Madras High Court while deciding the
dispute earlier in Marimuthu Dikshitar (Supra), traced the history of
Dikshitars and examined their rights, etc. The Court concluded:
“Looking at it from the point of view, whether the Podu
Dikshitars are a denomination, and whether their right as a
denomination is to any extent infringed within the meaning of
Article 26, it seems to us that it is a clear case, in which it
can safely be said that the Podu Dikshitars who are Smartha
Brahmins, form and constitute a religious denomination or in any
event, a section thereof. They are even a closed body, because
no other Smartha Brahmin who is not a Dikshitar is entitled to
participate in the administration or in the worship or in the
services to God. It is their exclusive and sole privilege which
has been recognized and established for over several centuries.
In the case of Sri Sabhanayakar Temple at Chidambaram,
with which we are concerned in this petition, it should be clear
from what we have stated earlier in this judgment, that the
position of the Dikshitars, labelled trustees of this Temple, is
virtually analogous to that of a Matathipathi of a Mutt, except
that the Podu Dikshitars of this Temple, functioning as
trustees, will not have the same dominion over the income of the
properties 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 Miscellaneous Petition above mentioned
being called on for hearing before this Court on the 9th day of
February, 1954 upon hearing the Advocate-General of Madras on
behalf of the Appellants and counsel for the respondents and
upon the said advocate-General appearing on behalf of the State
of Madras agreeing to withdraw the notification G.O. Ms. No.894
Rural Welfare dated 28.8.1951 published in Fort St. George
Gazette dated 4.9.1951 in the matter of the Sabhanayagar Temple,
Chidambaram, Chidambaram Taluk, South Arcot District/the Temple
concerned in this appeal/this Court doth order that the appeal
and the civil miscellaneous petition above mentioned be and the
same are hereby dismissed.”
21. It is evident from the judgment of the High Court of Madras,
which attained finality as the State withdrew the notification, that
the Court recognised:
a) That Dikshitars, who are Smarthi Brahmins, form and constitute a
‘religious denomination’;
b) Dikshitars are entitled to participate in administration of the
Temple; and
c) It was their exclusive privilege which had been recognised and
established for over several centuries.
22. It is not a case to examine whether in the facts and
circumstances of the case, the judgments of this court in various
cases are required to be followed or the ratio thereof is binding in
view of the provisions of Article 141 of the Constitution. Rather the
sole question is whether an issue in a case between the same parties,
which had been finally determined could be negated relying upon
interpretation of law given subsequently in some other cases, and the
answer is in the negative. More so, nobody can claim that the
fundamental rights can be waived by the person concerned or can be
taken away by the State under the garb of regulating certain
activities.
23. The scope of application of doctrine of res judicata is in
question.
The literal meaning of “res” is “everything that may form an
object of rights and includes an object, subject-matter or status” and
“res judicata” literally means “a matter adjudged a thing judicially
acted upon or decided; a thing or matter settled by judgments”. “Res
judicata pro veritate accipitur” is the full maxim which has, over the
years, shrunk to mere “res judicata”, which means that res judicata is
accepted for truth.
24. The doctrine contains the rule of conclusiveness of the judgment
which is based partly 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 expounded by the Hindu commentators. Vijnanesvara and
Nilakantha include the plea of a former judgment among those
allowed by law, each citing for this purpose the text of
Katyayana, who describes the plea thus: 'If a person though
defeated at law, sue again, he should be answered, ‘‘you were
defeated formerly". This is called the plea of former
judgment.’... And so the application of the rule by the courts
in India should be influenced by no technical considerations of
form, but by matter of substance within the limits allowed by
law’’
26. This Court in Satyadhyan Ghosal & Ors. v. Smt. Deorajin Debi &
Anr., AIR 1960 SC 941 explained the scope of principle of res-judicata
observing as under:
“7. The 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. Primarily it
applies as between past litigation and future litigation, When a
matter - whether on a question of fact or a question of law -
has been decided between two parties in one suit or proceeding
and the decision is final, either because no appeal was taken to
a higher court or because the appeal was dismissed, or no appeal
lies, neither party will be allowed in a future suit or
proceeding between the same parties to canvass the matter again.
This principle of res judicata is embodied in relation to suits
in S. 11 of the Code of Civil Procedure; but even where S. 11
does not apply, the principle of res judicata has been applied
by courts for the purpose of achieving finality in litigation.
The result of this is that the original court as well as any
higher court must in any future litigation proceed on the basis
that the previous decision was correct.”
A similar view has been re-iterated by this court in Daryao &
Ors. v. The State of U.P. & Ors., AIR 1961 SC 1457; Greater Cochin
Development Authority v. Leelamma Valson & Ors., AIR 2002 SC 952; and
Bhanu Kumar Jain v. Archana Kumar & Anr., AIR 2005 SC 626.
27. The Constitution Bench of this Court in Amalgamated Coalfields
Ltd. & Anr. v. Janapada Sabha Chhindwara & Ors., AIR 1964 SC 1013,
considered the issue of res judicata applicable in writ jurisdiction
and held as under:
“…Therefore, there can be no doubt that the general principle
of res judicata applies to writ petitions filed under Article 32
or Article 226. It is necessary to 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.”
(See also: Burn & Co., Calcutta v. Their Employees, AIR 1957 SC 38;
G.K. Dudani & Ors. v. S.D. Sharma & Ors., AIR 1986 SC 1455; and Ashok
Kumar Srivastav v. National Insurance Co. Ltd. & Ors., AIR 1998 SC
2046).
29. A three-Judge Bench of this court in The State of Punjab v. Bua
Das Kaushal, AIR 1971 SC 1676 considered the issue and came to the
conclusion that if necessary facts were present in the mind of the
parties and had gone into by the court, in such a fact-situation,
absence of specific plea in written statement and framing of specific
issue of res judicata by the court is immaterial.
30. A similar view has been re-iterated by this court in Union of
India v. Nanak Singh, AIR 1968 SC 1370 observing as under:
“This Court in Gulabchand Chhotalal v. State of Gujarat, AIR
1965 SC 1153 observed that the provisions of Section 11 of the
Code of Civil Procedure are not exhaustive with respect to all
earlier decision operating as res judicata between 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 Court competent to decide it, will operate
as res judicata in a subsequent regular suit. It is not
necessary that the Court deciding the matter formerly be
competent to decide the subsequent suit or that the former
proceeding and the subsequent suit have the same subject-matter.
There is no good reason to preclude, such decisions on matters
in controversy in writ proceedings under Article 226 or Article
32 of the Constitution from operating as res judicata in
subsequent regular suits on the same matters in controversy
between the same parties and thus to give limited effect to the
principle of the finality of decisions after full contest.”
31. It is a settled legal proposition that the ratio of any decision
must be understood in the background of the facts of that case and the
case is only an authority for what it actually decides, and not what
logically follows from it. “The court should not place reliance on
decisions without discussing as to how the factual situation fits in
with the fact-situation of the decision on which reliance is placed.”
32. Even otherwise, a different view on the interpretation of the
law may be possible but 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 judgment was allowed to become final. This Court
rejected the contention of the LIC that in view of the intervention of
legislation, it was not liable to meet the liability under the said
judgment. The Court held that there was nothing in the Act which
nullifies the effect of the said judgment or which could set at naught
the judgment or take away the binding character of the said judgment
against LIC. Thus, the LIC was liable to make the payment in
accordance with the said judgment and it could not be absolved from
the obligation imposed by the said judgment.
34. This Court, while considering the binding effect of the judgment
of this Court, in State of Gujarat & Anr. v. Mr. Justice R.A. Mehta
(Retd.) & Ors., AIR 2013 SC 693, held:
“There can be no dispute with respect to the settled legal
proposition that a judgment of this Court is binding,…..It is
also correct to state that, even if a particular issue has not
been agitated earlier, or a particular argument was advanced,
but was not considered, the said judgment does not lose its
binding effect, provided that the point with reference to which
an argument is subsequently advanced, has actually been decided.
The decision therefore, would not lose its authority, "merely
because it was badly argued, inadequately considered or
fallaciously reasoned". (Vide: Smt. Somavanti & Ors. v. The
State of Punjab & Ors., AIR 1963 SC 151; Ballabhdas Mathuradas
Lakhani & Ors. v. Municipal Committee, Malkapur, AIR 1970 SC
1002; Ambika Prasad Mishra v. State of U.P. & Ors., AIR 1980 SC
1762; and Director of Settlements, A.P. & Ors. v. M.R. Apparao &
Anr., AIR 2002 SC 1598).”
35. The issue can be examined from another angle. Explanation to
Order XLVII, Rule 1 of Code of Civil Procedure, 1908 (hereinafter
referred to as the ‘CPC’) provides that if the decision on a question
of law on which the judgment of the court is based, is reversed or
modified by the subsequent decision of a superior court in any other
case, it shall not be a ground for the review of such judgment. Thus,
even an erroneous decision cannot be a ground for the court to
undertake review, as the first and foremost requirement of
entertaining a review petition is that the order, review of which is
sought, suffers from any error apparent on the face of the order and
in absence of any such error, finality attached to the judgment/order
cannot be disturbed. (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-situation, it was not permissible for the
authorities to pass any order divesting the said respondent from
administration of the Temple and thus, all orders passed in this
regard are liable to be held inconsequential and unenforceable.
More so, the judgments relied upon by the respondents are
distinguishable on facts.
38. Thus, in view of the above, it was not permissible for the High
Court to assume that it had jurisdiction to sit in appeal against its
earlier judgment of 1951 which had attained finality. Even otherwise,
the High Court has committed an error in holding that the said
judgment in Marimuthu Dikshitar (Supra) would not operate as res
judicata. Even if the Temple was neither established, nor owned by
the said respondent, nor such a claim has ever been made by the
Dikshitars, once the High Court in earlier judgment has recognised
that they constituted `religious denomination’ or section thereof and
had right to administer the Temple since they had been administering
it for several centuries, the question of re-examination of any issue
in this regard could not arise.
39. Relevant features of the order passed by the Commissioner are
that the Executive Officer shall be incharge of all immovable
properties of the institution; the Executive Officer shall be entitled
to the custody of all immovables, livestock and grains; the Executive
Officer shall be entitled to receive all the income in cash and kind
and all offerings; all such income and offerings shall be in his
custody; all the office holders and servants shall work under the
immediate control and superintendence of the Executive Officer, though
subject to the disciplinary control of the Secretary of the respondent
no.6., etc.
40. Section 116 of the Act 1959 enables the State Government to
frame rules to carry out the purpose of the Act for “all matters
expressly required or allowed by this Act to be prescribed”. Clause 3
thereof requires approval of the rules by the House of State
Legislature. The Executive Officer so appointed by the Commissioner
has to function as per assigned duties and to the extent the
Commissioner directs him to perform.
41. It is submitted by Dr. Swamy that rules have to be framed
defining the circumstances under which the powers under Section 45 of
the Act 1959 can be exercised. The Act 1959 does not contemplate
unguided or unbridled functioning. On the contrary, the prescription
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 term ‘prescribed’ has not been defined under the Act. Prescribed
means prescribed by rules. If the word ‘prescribed’ has not been
defined specifically, the same would mean to be prescribed in
accordance with law and not otherwise. Therefore, a particular power
can be exercised only if a specific enacting law or statutory rules
have been framed for that purpose. (See: Manohar Lal Chopra v. Rai
Bahadur Rao Raja Seth Hiralal, AIR 1962 SC 527; Hindustan Ideal
Insurance Co. Ltd. v. Life Insurance Corporation of India, AIR 1963 SC
1083; Maharashtra SRTC v. Babu Goverdhan Regular Motor Service Warora
& Ors., AIR 1970 SC 1926; and Bharat Sanchar Nigam Ltd. & Anr. v. BPL
Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597).
44. Shri Subramonium Prasad, learned AAG, has brought the judgment
in M.E. Subramani & Ors. v. Commissioner, HR&CE & Ors., AIR 1976 Mad
264, to our notice, wherein the Madras High Court while dealing with
these provisions held that the Commissioner can appoint an Executive
Officer under Section 45 even if no conditions have been prescribed in
this regard. It may not be possible to approve this view in view of
the judgments of this Court referred to in para 41 supra, thus, an
Executive Officer could not have been appointed in the absence of any
rules prescribing conditions subject to which such appointment could
have been made.
45. However, Shri Subramonium Prasad, learned AAG, has submitted
that so far as the validity of Section 45 of the Act 1959 is
concerned, it is under challenge in Writ Petition (C) No. 544 of 2009
and the said petition had earlier been tagged with these appeals, but
it has been de-linked and is to be beard after the judgment in these
appeals is delivered. Thus, in view of the stand taken by the State
before this court, going into the issue of validity of Section 45 of
the Act 1959 does not arise and in that respect it has been submitted
in written submissions as under:
(a) The scheme of administration in Board’s Order No.997 dated
8.5.1933 under the Act 1927 contained various provisions inter-
alia that active management would rest in the committee
consisting of nine members who were to be elected from among the
Podhu Dikshitars (clause 4);
(b) At the time of issuing the order of appointment of
Executive Officer, the Podhu Dikshitars were given full
opportunity of hearing and the powers and duties of the
Executive Officer as defined 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 filed on behalf of the
State.
47. Even if the management of a temple is taken over to remedy the
evil, the management must be handed over to the person concerned
immediately after the evil stands remedied. Continuation thereafter
would tantamount to usurpation of their proprietary rights or
violation of the fundamental rights guaranteed by the Constitution in
favour of the persons deprived. Therefore, taking over of the
management in such circumstances must be for a limited period. Thus,
such expropriatory order requires to be considered strictly as it
infringes fundamental rights of the citizens and would amount to
divesting them of their legitimate rights to manage and administer the
temple for an indefinite period. We are of the view that the impugned
order is liable to be set aside for failure to prescribe the duration
for which it will be in force.
Super-session of rights of administration cannot be of a
permanent enduring nature. Its life has to be reasonably fixed so as
to be co-terminus with the removal of the consequences of
maladministration. The reason is that the objective to take over the
management and administration is not the removal and replacement of
the existing administration but to rectify and stump out the
consequences of maladministration. Power to regulate does not mean
power to supersede the administration for indefinite period.
Regulate is defined as to direct; to direct by rule or
restriction; to direct or manage according to the certain standards,
to restrain or restrict. The word `regulate’ is difficult to define
as having any precise meaning. It is a word of broad import, having a
broad meaning and may be very comprehensive in scope. Thus, it may
mean to control or to subject to governing principles. Regulate has
different set of meaning and must take its colour from the context in
which it is used having regard to the purpose and object of the
legislation. The word `regulate’ is elastic enough to include issuance
of directions etc. (Vide: K. Ramanathan v. State of Tamil Nadu & Anr.,
AIR 1985 SC 660; and Balmer Lawrie & Company Limited & Ors. Partha
Sarathi Sen Roy & Ors., (2013) 8 SCC 345)
48. Even otherwise it is not permissible for the State/Statutory
Authorities to supersede the administration by adopting any
oblique/circuitous method. In Sant Lal Gupta & Ors. v. Modern Coop.
Group Housing Society Ltd. & Ors., (2010) 13 SCC 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 the Executive Officer does not disclose as for what
reasons and under what circumstances his appointment was necessitated.
Even otherwise, the order in which no period of its operation is
prescribed, is not sustainable being ex facie arbitrary, illegal and
unjust.
50. Thus, the appeals are allowed. Judgments/orders impugned are set
aside. There shall be no order as to costs.
.........................………………..J.
(DR. B.S.
CHAUHAN)
.............…………………….…J. (S.A.
BOBDE)
New Delhi,
December 6, 2014