January 13, 2014
Pousha Shukla Trayodashi, Kaliyug Varsha 5115
Dr Swamy’s Letter
Free Hindu temples from Govt. control as per SC judgement of Jan. 6, 2014 , Dr. Swamy to Ms. Jayalalithaa
January 9, 2014.
Ms. J. Jayalalitha,
Chef Minister of Tamil Nadu,
Fort St. George,
Dear Ms. Jayalalitha,
I write this letter to draw your attention to the judgment in the Civil Appeal No. 10620 of 2013 in which Appeal, I was the Appellant and your Government was the Respondent. The judgment was delivered in my favour on January 6th, 2014 by a Division Bench. It sets aside the High Court judgment of the Single Judge as well as the Division Bench which were in favour of the Tamil Nadu Government.
With this letter I am enclosing an extract of the said judgment, viz., paragraphs 46 to 50 which is of importance for the future.
A close reading of the said paragraphs clearly brings out that any take over of a temple administration by the Government, by an Order of appointment of an Executive Officer, which Order does not disclose the period of validity of the order, is arbitrary, illegal and unjust. Therefore the said Order is liable to be quashed by the Court.
Hence I seek your co-operation for de-notifying of all the forty-seven thousand temples which are presently under your Government control, and illegal.
In my capacity as Convener of the Legal Cell of the Hindu Dharma Acharya Sabha (led by Swami Dayananda Saraswati of Arsha Vidya Gurukulam, Coimbatore) I can assist the Government for orderly freeing of the temples at the earliest in a phased manner.
I know that you are a devout Hindu and would therefore appreciate that in the larger interest of the Hindus in the State of Tamil Nadu, and to set an example to the rest of the country, you will read this letter sympathetically and help to rectify the monstrous discrimination against the Hindu temples that has been practiced in the State in the last 90 years.
I hope that it will not be necessary for any further litigation in this matter.
Paragraphs 46 to 50 of the SC Judgement
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 Tanil 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.
Hon’ble Supreme Court has held that any take over of a temple administration by the Government, by an Order of appointment of an Executive Officer, which Order does not disclose the period of validity of the order, is arbitrary, illegal and unjust.
This is a rule of law clarified by SC defining the limited powers of any Govt. to take over temple administration will be rendered arbitrary, illegal and unjust if a limited time period of take over is not specified.
Thus, this general principle of law enunciated by SC should apply to all temples in all states in the territory of India now under Govt. administration.
In particular, a letter on the lines of Dr. Swamy’s letter is in order to all Governments and in particular to Govts of Kerala, Andhra Pradesh, Karnataka, Maharashtra, Orissa, Madhya Pradesh, Uttar Pradesh and to the Pondicherry Administration.
What the SC has ruled is that any take over of a Hindu religious endowment without a specified, LIMITED duration is arbitrary and invalid. This Constitutional mandate under Art. 32 should, therefore apply ipso facto to all Religious endowment Acts of various state governments.
Flowing from the following acts, State governments have enacted laws with similar provisions such as Charitable Endowments Act, 1951 (Madras Act 19 of 1951) which is used in the states which were part of Madras Presidency:
CHARITABLE ENDOWMENTS ACT 1890
RELIGIOUS ENDOWMENTS ACT, 1863
Various states have also these acts in force in comparable forms.
The same Act has been used for Hindu temples in Kerala, Pondicherry. Kerala has constituted boards such as
Travancore Devaswom Board
Malabar Devaswom Board
Guruvayur Devaswom Board
Cochin Devaswom Board
(1) The Karnataka Religious and Charitable Institutions Act, 1927;
Mysore Religious Endowments Act, 1959
(3) The Bombay Public Trust Act, 1950;
(4) The Hyderabad Endowment Act, Regulations, 2349F; and
(5) The Coorg Temple Funds Management Act, 1956.
Andhra Pradesh Endowments Act
At the time of formation of the State of Andhra Pradesh in 1956, there were two enactments for administering the Hindu Religious and Charitable Institutions viz., The Madras Act 19/1951 for Andhra area and the Hyderabad Endowments Regulations 1939 for Telangana area. With a view to have a uniform law throughout the State, the Government of Andhra Pradesh has enacted a new Endowments Act in 1966.
Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1966
To administer Hindu Temples, Mutts, Peetams and other Charitable Institutions and Endowments
To ensure proper administration of these institutions and appropriating their income for which they were established.
To protect the properties of Hindu temples and other charitable Institutions.
Maharashtra Religious Endowment’s (Reconstruction in Resettlement Sites) Act, 1970.
Uttar Pradesh Hindu Religious Institutions (Prevention of Dissipation of Properties) Act, 1962
Orissa Hindu Religious Endowment Act 1969 changed after Odisha Hindu Religious Endowments (Amendment) Bill 2012 passed in the state Assembly
Source: Haindava Keralam