(Prayer: W.A.No.3526 of 2004: This Writ Appeal is filed under Clause 15 of Letters Patent against the order of this Court dated 23.7.2004 in W.P.No.15468 of 2003.

Prayer: W.A.No.3527 of 2004: This Writ Appeal is filed under Clause 15 of Letters Patent against the order of this Court dated 23.7.2004 in W.P.No.15469 of 2003.)

Common Judgment

(The Judgment of the Court was made by M.JAICHANDREN,J.)

1. Since, the issues involved in both the writ appeals are similar in nature, they have been taken up together and a common judgment is being passed.

2. The above writ appeals have been filed challenging the common Judgment of this Court, dated 23.7.2004, made in W.P.Nos.15468 and 15469 of 2003.

3. The writ petition, in W.P.No.15468 of 2003, had been filed by the petitioners therein, who are the appellants in the present writ appeals, praying for a writ of Certiorari to quash the order of the first respondent made in G.O.(1D) No.105, Tamil Development and Culture and Religious Endowments Department, dated 16.5.2003, and the consequential order of the second respondent, in Na.Ka.No.100869/2000/L5, dated 20.5.2003, disposing of the appeal relating to the appointment of an Executive Officer for the administration of the appellant temple.

4. The writ petition, in W.P.No.15469 of 2003, had been filed praying for a writ of Certiorari challenging the order of the first respondent, made in G.O. (1D) No.106, Tamil Development and Culture and Religious Endowments Department, dated 16.5.2003, and the consequential order of the second respondent, in Na.Ka.No.14182/98/A1, dated 20.5.2003, relating to the appointment of a Takkar due to the expiry of the term of office of the trustees of the appellant temple.

5. The learned Single Judge of this Court, by his common Judgment, dated 23.7.2004, had dismissed the writ petitions holding that the appointment of an Executive Officer cannot be held to be invalid, as it is within the powers of the second respondent to make such an appointment, as per the provisions of the Tamilnadu Hindu Religious and Charitable Endowments Act, 1959. It had also been held that the scheme framed by the Subordinate Court, Chengalpet, in O.S.No.43 of 1919, relating to the administration of the appellant temple, had been modified. Unless the modification made had been successfully challenged, it would not be open to the appellants to challenge the appointment of the executive officer for the administration of the appellant temple.

6. The appellants have challenged the common judgment of this Court, dated 23.7.2004, raising various grounds.

7. It has been stated that the learned Single Judge of this Court had failed to note that, as per the decree of the civil court, dated 2.3.1974, made in O.S.No.6784 of 1971, the appellant temple had been declared as a religious denomination belonging to Saiva Sengunthar community of Thirukaranai Village and that it had the exclusive right of managing the affairs of the temple without the interference of the Hindu Religious and Charitable Endowments Department. The said decree having become final, it would not be open to the authorities concerned to appoint an Executive Officer to manage the affairs of the appellant temple, by invoking the provisions of the Tamilnadu Hindu Religious and Charitable Endowments Act, 1959.

8. It had also been stated that the appellants, who were the executive trustees of the temple, had not been given an opportunity to represent their case before the impugned order had been passed appointing the Executive Officer to manage its affairs. There was no proper application of mind by the second respondent before the order made in G.O.(1D) No.105, Tamil Development and Culture and Religious Endowments Department, dated 16.5.2003, had been passed, especially, when the executive trustees had been elected, on 27.10.2002, for managing the affairs of the appellant temple, for a period of three years. While so, the appointment of a Takkar by the second respondent is clearly in violation of the decree passed by the Civil Court. The authority concerned does not possess the power to appoint an Executive Officer, under Section 64 of the Tamilnadu Hindu Religious and Charitable Endowments Act, 1959.

9. It had been further stated that the appellant temple having been declared as a religious denominational institution, as per the decree of the Civil Court, no further declaration is necessary describing its character. As such, the impugned orders had been issued in violation of Article 26 of the Constitution of India. The appointment of an Executive Officer, by the second respondent, under Section 45(1) of the Act, cannot be held to be valid in the eye of law, in view of the declaration that the appellant temple is a religious denominational institution, as per the scheme decree of the Civil Court framed in O.S.No.43 of 1919.

10. The learned counsel appearing on behalf of the appellants had further submitted that Section 64 (5) of the Tamilnadu Hindu Religious and Charitable Endowments Act, 1959, empowers the Joint Commissioner to modify the scheme framed by the concerned Court. Section 118(2)(a) of the Act would apply only in respect of a scheme framed under the Tamilnadu Hindu Religious and Charitable Endowments Act, 1959, and it would not apply to a scheme framed prior to the coming into force of the said Act. Since, the scheme decree, relating to the administration of the affairs of the appellant temple, had been framed in O.S.No.43 of 1919, by a decree, dated 23.4.1924, the Joint Commissioner would have no jurisdiction to modify such a scheme.

11. The learned counsel appearing on behalf of the appellant had stated that the State has got the power only to regulate secular activities and not the religious activities of the appellant temple. As per the decree of the concerned civil Court, the administration of the appellant temple is vested with the trustees of the temple, who are belonging to the Saiva Sengunthar community of Thirukaranai village. The decree cannot be modified by an executive order issued under the provisions of the Tamilnadu Hindu Religious and Charitable Endowments Act, 1959. Any such modification would be non est in the eye of law. In such circumstances, any interference by the authorities in the administration of the appellant temple, by invoking the provisions of the Tamilnadu Hindu Religious and Charitable Endowments Act, 1959, cannot be held to be valid. He had relied on the decision, in PANNALAL BANSILAL PITTI Vs. STATE OF A.P. (1996) 2 SCC 498 [LQ/SC/1996/125] ), in support of the said contention. In the said decision, the Supreme Court had held as follows:

Hindus are majority in population and Hinduism is a major religion. While Articles 25 and 26 granted religious freedom to minority religions like Islam, Christianity and Judaism, they do not intend to deny the same guarantee to Hindus. Therefore, protection under Articles 25 and 26 is available to the people professing Hindu religion subject to the law therein. The right to establish a religious and charitable institution is a part of religious belief or faith and, though law made under clause (2) of Article 25 may impose restrictions on the exercise of that right, the right to administer and maintain such institution cannot altogether be taken away and vested in another party; more particularly, in the officers of a secular Government.

The perennial and perpetual source to establish or create any religious or charitable institution or endowment of a specific endowment is the charitable disposition of a pious persons or other benevolent motivating factors, but to the benefit of indeterminate number of people having common religious faith and belief which the founder espouses. Even a desire to perpetuate the memory of an philanthropist or a pious person or a member of the family or founder himself may be the motive to establish a religious or charitable institution or endowment or specific endowment. Total deprivation of its establishment and registration and take over of such bodies by the State would dry up such sources or acts of pious or charitable disposition and act as disincentive to the common detriment.

With a view to effectuate the object of the religious or charitable institution or endowment or specific endowment and to encourage establishment of such institutions in future, making the founder or in his absence a member of his family to be a chairperson and to accord him major say in the management and governance would be salutary and effective. The founder or a member of his family would, thereby, enable to effectuate the proper, efficient and effective management and governance of charitable or religious institution or endowment or specific endowment thereof in future. It would add incentive to establish similar institutions.

Sections 17 and 29(5) are grounded on the findings of the report of Challa Kondaiah Commission, which indicated mismanagement and misutilisation of funds of charitable and Hindu religious institutions and endowments in a big way. This is, however, a general finding; all the charitable and religious institutions may not be painted with the same brush. There would be charitable or religious institutions in the State which are neither mismanaged nor is there misutilisation of funds. Even so, if the legislature acted on the general findings recorded by the Commission, due weightage has to be given to the same. The board of trustees should be headed either by the founder or a member of his family, would go a long way in seeing the fulfilment of the wishes and desires of the founder.

Sections 17 and 29(5) cannot, therefore, be faulted. Whatever rigour these sections have, would be duly get softened by the requirement of the board being headed by the founder or any of his family members, as the case may be. These provisions have to be read down accordingly. Subject to this rider, the validity of these two Sections are upheld."

12. It had been further stated that the authorities concerned can act in accordance with the provisions of the Tamilnadu Hindu Religious and Charitable Endowments Act, 1959, only in respect of religious institutions of a public character. However, they would have no power or jurisdiction to deal with the administration of the religious institutions, which are private in character. As such, the respondents have no authority to appoint an executive officer or a fit person to manage the affairs of the appellant temple, which is a religious denominational institution, as per the scheme decree, dated 23.4.1924, made in O.S.No.43 of 1919, under Section 92 of the Civil Procedure Code. Further, the denominational character of the appellant temple has been clearly pronounced in the judgment, dated 2.3.1974, made in O.S.No.6784 of 1971, on the file of the II Assistant City Civil Court, Chennai.

13. It had also been submitted that the requirements of Sections 70 and 71 of the Act should have been complied with, by the authorities concerned, before appointing an executive officer in respect of the appellant temple. It had also been submitted that no modification of the original scheme, framed in respect of the appellant temple, would have been done validly, except by approaching the concerned civil court.

14. The learned counsel had further submitted that, as per the provisions of Section 65, only the Commissioner Hindu Religious and Charitable Endowments Department, could settle a scheme for the proper administration of the religious institutions concerned, whereas, the impugned order has been passed by the first respondent, contrary to the provisions of the Tamilnadu Hindu Religious and Charitable Endowments Act, 1959. Further, a fit person cannot be appointed, contrary to the provisions of the Tamilnadu Hindu Religious and Charitable Endowments Act, 1959, as well as the scheme decree. The fit person has been appointed, without having proper reasons to do so, especially, when the appellant temple was being administered by the duly elected trustees, by way of an election, held as per the scheme decree. If there is any mismanagement of the religious institution, it would be open to the authorities concerned to initiate appropriate action under the provisions of Chapter VI of the Tamilnadu Hindu Religious and Charitable Endowments Act, 1959. Whereas, the first and the second respondents have not passed the impugned orders under the provisions of the said chapter, even if the appointment of a fit person is found to be necessary for the administration of the appellant temple.

15. The learned counsel had also submitted that the impugned orders passed by the first and the second respondents have not taken into consideration the relevant provisions of the Tamilnadu Hindu Religious and Charitable Endowments Act, 1959, including Sections 64, 65, 105 and 118 of the Act. Further, the impugned orders are contrary to the right of religious freedom recognised under Articles 25 and 26 of the Constitution of India and the relevant provisions of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959. Even if there was a necessity to appoint a fit person, the authorities concerned should have appointed a person only from the Sengundar Mudaliar community. As such, the impugned orders are arbitrary, irrational and invalid in the eye of law.

16. The learned counsel appearing on behalf of the appellants had relied on the following decisions in support of his contentions:

16.1 In TEKI VENKATA RATNAM Vs. DY. COMMR., ENDOWMENTS (2001 7 SCC 106 [LQ/SC/2001/1663] ), the Supreme Court had held that, when a dispute arises as to whether an institution is a religious institution or whether a temple is a public or a private temple, under Section 87 read with Sections 2(22) and 2(27), the Deputy Commissioner has power and jurisdiction to enquire into and decide such a dispute. The Deputy Commissioner exercises quasi-judicial power while holding enquiry and deciding a dispute under Section 87(1). The Deputy Commissioner has jurisdiction to enquire into and decide the dispute covered by clauses (a) to (g) of sub-section (1). Sub-section (6) has sufficient indication that in such an enquiry, there will be presumption that the institution or endowment is a public one and burden lies on the person claiming the institution or endowment to be private. If the argument that the Act does not apply to private temples is to be accepted, then it is enough for any person or body to claim a temple as a private one so as to take away the power and jurisdiction otherwise conferred on the Deputy Commissioner under Section 87 of the 1987 Act. A merely self-serving design of a party to claim a temple as a private one cannot defeat a specific statutory provision conferring power on a authority to decide a question. It is a different matter, if there is no dispute that a particular temple is a private temple.

16.2. In PANNALAL BANSILAL PITTI AND OTHERS Vs. STATE OF A.P. AND ANOTHER (1996) 2 SCC 498 [LQ/SC/1996/125] ), the Supreme Court had held as follows:

"25. But immediate question is whether taking away of the management and vesting the same in the board of non- hereditary trustees, constituted under Section 15, is valid in law. It is seen that the perennial and perpetual source to establish or create any religious or charitable institution or endowment of a specific endowment is the charitable disposition of a pious persons or other benevolent motivating factors, but to the benefit of indeterminate number of people having the common religious faith and belief which the founder espouses. Even a desire to perpetuate the memory of an philanthropist or a pious person or a member of the family or founder himself may be the motive to establish a religious or charitable institution or endowment or specific endowment. Total deprivation of its establishment and registration and take over of such bodies by the State would dry up such sources or acts of pious or charitable disposition and act as disincentive to the common detriment.

26. Hindus are majority in population and Hinduism is a major religion. While Articles 25 and 26 granted religious freedom to minority religions like Islam, Christianity and Judaism, they do not intend to deny the same guarantee to Hindus. Therefore, protection under Articles 25 and 26 is available to the people professing Hindu religion, subject to the law therein. The right to establish a religious and charitable institution is a part of religious belief or faith and, though law made under clause (2) of Article 25 may impose restrictions on the exercise of that right, the right to administer and maintain such institution cannot altogether be taken away and vested in other party; more particularly, in the officers of a secular Government. The administration of religious institution or endowment or specific endowment being a secular activity, it is not an essential part of religion and, therefore, the legislature is competent to enact law, as in Part III of the Act, regulating the administration and governance of the religious or charitable institutions or endowment. They are not part of religious practices or customs. The State does not directly undertake their administration and expend any public money for maintenance and governance thereof. Law regulates appropriately for efficient management or administration or governance of charitable and Hindu religious institutions or endowments or specific endowments, through its officers or officers appointed under the Act.

27. The question then is whether legislative declaration of the need for maintenance, administration and governance of all charitable and Hindu religious institutions or endowments or specific endowments and taking over the same and vesting the management in a trustee or board of trustees is valid in law. It is true, as rightly contended by Shri P.P. Rao, that the legislature acting on the material collected by Justice Challa Kondaiah Commission amended and repealed the predecessor Act 1966 and brought the Act on statute. Section 17 of the predecessor Act of 1966 had given power to a hereditary trustee to be the chairman of the board of non-hereditary trustee. Though abolition of hereditary right in trusteeship under Section 16 has already been upheld, the charitable and religious institution or endowment owes its existence to the founder or members of the family who would resultantly evince greater and keener responsibility and interest in its proper and efficient management and governance. The autonomy in this behalf is an assurance to achieve due fulfillment of the objective with which it was founded unless, in due course, foul in its management is proved. Therefore, so long as it is properly and efficiently managed, he is entitled to due freedom of management in terms of the deed of endowment or established practice or usage. In case a board of trustees is constituted, the right to preside over the board given to the founder or any member of his family would generate feeling to actively participate, not only as a true representative of the source, but the same also generate greater influence in proper and efficient management of the charitable or religious institution or endowment. Equally, it enables him to persuade other members to follow the principles, practices, tenets, customs and sampradayams of the founder of the charitable or religious institution or endowment or specific endowment. Mere membership along with others, many a times, may diminish the personality of the member of the family. Even in case some funds are needed for repairs, improvement, expansion etc., the board headed by the founder or his family member may raise funds from the public to do the needful, while the executive officer, being a Government servant, would be handicapped or in some cases may not even show interest or inclination in that behalf. With a view, therefore, to effectuate the object of the religious or charitable institution or endowment or specific endowment and to encourage establishment of such institutions in future, making the founder or in his absence a member of his family to be a chairperson and to accord him major say in the management and governance would be salutary and effective. The founder or a member of his family would, thereby, enable to effectuate the proper, efficient and effective management and governance of charitable or religious institution or endowment or specific endowment thereof in future. It would add incentive to establish similar institutions.

28. Keeping this pragmatic perspective in consideration, the question that emerges is: whether Sections 17 and 29(5) are valid in law. Reading down the provisions of an Act is a settled principle of interpretation so as to sustain their constitutionality, as well as for effectuation of the purpose of the statute. With the above in mind, we may examine the validity of Section 17 and 29(5). These statutory provisions are grounded on the findings of the report of Challa Kondaiah Commission, which indicated mismanagement and misutilisation of funds of charitable and Hindu religious institutions and endowments in a big way. This is, however, a general finding; and we are prepared to agree with the learned counsel for the petitioners that all the charitable and religious institutions may not be painted with the same brush. We have no doubt that there would be charitable or religious institutions in the State which are neither mismanaged nor there is misutilisation of funds. Even so, if the legislature acted on the general findings recorded by the Commissioner, due weightage has to be given to the same. Our view that the board of trustees should be headed either by the founder or a member of his family, would go a long way in seeing the fulfillment of the wishes and desires of the founder."

16.3. In SRI ADI VISHESHWARA OF KASHI VISHWANATH TEMPLE, Vs. STATE OF U.P (1997) 4 SCC 606 [LQ/SC/1997/494] , the Supreme Court had held that though the performance of certain duties is part of the religion and the person performing the duties is also part of the religion or religious faith or matters of religion, it is required to be carefully examined and considered to decide whether it is a matter of religion or a secular management by the State. This multiplicity is not contrary to on-dualism. The protection of Articles 25 and 26 of the Constitution is not limited to matters of doctrine. They extend also to acts done in furtherance of religion and, therefore, they contain a guarantee for rituals and observances, ceremonies and modes of worship which are integral parts of the religion. The religion undoubtedly has its basis in a system of beliefs which are regarded by those who profess religion to be conducive to the future well-being. It is not merely a doctrine. It has outward expression in acts as well. It is not every aspect of the religion that requires protection of Articles 25 and 26 nor has the Constitution provided that every religious activity would not be interfered with. Every mundane and human activity is not intended to be protected under the Constitution in the garb of religion. Articles 25 and 26 must be viewed with pragmatism. By the very nature of things it would be extremely difficult, if not impossible, to define the expression "religion" or "matters of religion" or "religious beliefs or practice". Right to religion guaranteed by Articles 25 and 26 is not absolute or unfettered right to propagate religion which is subject to legislation by the State limiting or regulating every non-religious activity. The right to observe and practise rituals and right to manage in matters of religion are protected under these Articles. But right to manage the Temple or endowment is not integral to religion or religious practice or religion as such which is amenable to statutory control. These secular activities are subject to State regulation but the religion and religious practices which are integral part of religion are protected. It is a well settled law that administration, management and governance of the religious institution or endowment are secular activities and the State could regulate them by appropriate legislation.

16.4. In SRI KANYAKA PARAMESWARI ANNA SATRAM COMMITTEE Vs. COMMR., HINDU RELIGIOUS & CHARITABLE ENDOWMENTS DEPTT., (1999) 7 SCC 666 [LQ/SC/1999/879] ), the Supreme Court had held as follows:

"14. It cannot be denied that among the religious institutions denominational institutions stand on a different footing and enjoys special protection under Article 26 of the Constitution. Therefore, while considering the challenge to the appointment of an Executive Officer, it is essential to bear in mind the protection given under Article 26 of the Constitution, which the High Court failed to do. In the circumstances, we are of the view that instead of ourselves going into that, we consider it appropriate to remand the matter to the Division Bench to hear and dispose of the case on that aspect. While accepting the finding, which has not been challenged by the respondents that the appellant-institution is a denomination one, the High Court will decide the legality of the appointment of the Executive Officer particularly in the light of Article 26 of the Constitution and the decisions of this Court referred to earlier."

16.5. In NALLOR MARTHANDAM VELLALAR Vs. THE COMMISSIONER, HINDU RELIGIOUS AND CHARITABLE ENDOWMENTS (2003 (3) CTC 690 [LQ/SC/2003/704] ), the Supreme Court had held as follows:

"8. It is settled position in law, having regard to the various decisions of this Court that the words "religious denomination" take their colour from the word religion. The expression "religious denomination" must satisfy three requirements - (1) it must be collection of individuals who have a system of belief or doctrine which they regard as conducive to their spiritual well-being, i.e., a common faith; (2) a common organisation; and (3) designation of a distinctive name. It necessarily follows that the common faith of the community should be based on religion and in that they should have common religious tenets and the basic cord which connects them, should be religion and not merely considerations of caste or community or societal status."

16.6. In R.MURALI & OTHERS Vs. KANYAKA P.DEVASTHANAM & CHARITIES & OTHERS (2005-3-L.W.422), the Supreme Court had held as follows:

"18. As a result of decree of declaration that the institution is of religious denomination of Arya Vysya community, it had protection under Article 26 of the Constitution of India from interference in its administration by the authorities under the Tamil Nadu Act. This right guaranteed under Article 26 of the Constitution has been expressly protected under section 107 of the Tamil Nadu Act by making inapplicable the other provisions of the Act including section 64 to institutions of religious and charitable nature of religious denominations.

19. Our conclusion is that on grounds both of existence of a decree of declaration and injunction granted by the city civil court in the year 1976 in the suit instituted by the respondents themselves and the mixed character of the institution of the religious denomination as religious and charitable with protection of Article 26 and section 107 of the Tamil Nadu Act, it is not open to the present appellants to approach the authorities under section 64 of the Tamil Nadu Act for modification or reframing the scheme of the administration of the trust. As decree of declaration and injunction is operative against the authorities under Tamil Nadu Act, civil court alone could have been approached by obtaining leave under section 92 of CPC for seeking modification or reframing of scheme of administration of the trust."

16.7. In K.ERANNA Vs. COMMISSIONER FOR HINDU RELIGIOUS AND CHARITABLE ENDOWMENTS, (AIR 1970 MYSORE 191) (V 57 C 48), it was held that the Area Committee has no power to appoint trustees in exercise of its power, under Section 41 read with Section 39, in respect of Public Hindu Temples, as Sections 39 and 41, which vest such power, in the Area Committee are invalid as violative of Article 26 of the Constitution of India. It cannot be said that, in view of the provisions of Sections 9 and 22 of the Act, as the right to administer the property of the temples in question are not taken away from the religious denomination, viz. Hindu in such case, Article 26 is not attracted. The sections other than Sections 39 and 41 clearly indicate that the Government has reserved to itself absolute powers to administer the properties of the institutions. The religious denomination is not left with any power. The Trustees appointed under the Act would, virtually, be the servants of the State through whom the State will exercise its own power of management and control. The provisions of Sections 9 and 22 of the Act, which prescribe that the officers and trustees of the religious institutions shall be persons professing the Hindu Religion, do not affect the absolute character of the powers vested in the Government. These provisions do not save the right of the religious denomination to administer the property of the temples.

16.8. In T.D.THATHACHARIAR Vs. DEPUTY COMMISSIONER, HINDU RELIGIOUS AND CHARITABLE ENDOWMENTS (1970 (2) MLJ 475 [LQ/MadHC/1970/181] ), it was held that there is no distinction between a scheme settled and a scheme modified for the purpose of Section 103(d) of the Madras Act XIX of 1951, or of Section 118(2)(a) of the Madras Act XXII of 1959. A scheme modified is as much a scheme settled.

16.9. The learned counsel appearing on behalf of the appellants had referred the decision of this Court, reported in THE ASSTT. COMMR., H.R. & C.E., SALEM Vs. N.K.S.E. MUDALIAR (AIR 1987 MADRAS 187), to state that even though a decree, dated 2.3.1974, made in O.S.No.6784 of 1971, on the file of the II Assistant City Civil Court, Chennai, does not declare the appellant temple as a religious denominational institution, the trial Court, in its judgment passed in the said suit, had clearly found that the appellant temple is a denominational institution. The relevant paragraph of the said decision reads as follows:

21. I have to refer to the contention urged by learned counsel for the respondents that the objection as to the maintainability of the suit for want of compliance with the provisions of O. 1, R. 8, Civil P.C. was not taken specifically in the written statement and that here was no issue regarding the same in the trial Court. Though there is no specific issue framed by the trial Court, I find that the matter has been argued before the trial Judge and it has been dealt with in Para 21 of his judgment. He has given a categorical finding that the suit is not maintainable as the community which claims the relief is not before the Court. The objection under O.1, R. 8, Civil P.C. has also been considered by the learned appellate Judge, though he comes to a different conclusion from that of the trial Judge. It is too late in the day to shut out the said objection on the ground that there was no specific pleading in the written statement. As pointed out earlier, R.8 of O. 1, Civil P.C. constitutes a glaring exception to the general rule and if it is not strictly complied with, it may result in a flagrant departure from the salutary practice of not proceeding with an adjudication in the absence of the parties affected thereby. The foundation of O.1, R.8, Civil P.C. lies in a principle which transcends the personal or parochial nature of the combatants who are arrayed as parties to the suit. It affects the rights of the persons not present before the Court. Hence, a duty is cast on the Court itself to follow meticulously the procedure prescribed by O.1, R. 8, Civil P.C. and it is immaterial whether the defendants raised the objection in the written statement or not. I do not see any substance in the objection of learned counsel for the respondents that the trial Court ought not to have considered the matter in the absence of a pleading and an issue, Hence, the suit has to be dismissed on that ground."

16.10. In M.R.SUBRAMANIAN AND OTHERS Vs. STATE OF TAMIL NADU REP. BY ITS SECRETARY ETC., (1997-2-L.W.8), the Division Bench of this Court had held as follows:

"It was argued on behalf of the petitioners that the impugned Ordinance and the Act 23 of 1996 are violative of Article 26(b) of the Constitution. There are several institutions which are admittedly controlled by religious denominations or by family trusts. These trustees are also deprived of their right to hold office and in their place officials of the Department will be appointed as Fit Persons. This would mean that a particular denomination will cease to have power to control the management and supervision over the institutions which are intended solely for their benefit. This would amount to taking away the rights of a particular denomination and such an action is violative of Article 26 of the Constitution. We see much force in this contention. In such cases, the Department could as well appoint any other person from that denomination even assuming that there is mis-management or appoint a member of the family itself to manage the institution instead of appointing a Fit Person. The Ordinance also fails to take into account these types of institutions and has failed to make any classification reasonably in this regard."

17. Per contra, the learned Additional Advocate General, assisted by the Special Government Pleader, appearing on behalf of the respondents 1 to 3, while denying the contentions raised on behalf of the appellants, had submitted that the claim that the appellant temple is a religious denominational institution cannot be sustained. A decree, dated 2.3.1974, made in O.S.No.6784 of 1971, does not declare the appellant temple to be a denominational institution. Further, it is not open to the appellants to claim that the first and the second respondents do not have the authority or jurisdiction to appoint an executive officer or a fit person for administering the affairs of the appellant temple. The respondents are vested with ample powers, under the provisions of the Tamilnadu Hindu Religious and Charitable Endowments Act, 1959, to appoint a fit person to administer the appellant temple. The fit person has been appointed as per G.O.(1D) 106, Tamil Development and Culture and Religious Endowments Department, dated 16.5.2003, only as a temporary measure, as the trustees of the temple had been elected in an election conducted contrary to the provisions of law. As such, the impugned orders passed by the first and the second respondents cannot be held to be arbitrary or invalid.

18. The learned counsel appearing on behalf of the fourth respondent had pointed out the relevant provisions of the Tamilnadu Hindu Religious and Charitable Endowments Act, 1959, and its applicability in the appointment of its executive officers, in respect of the appellant temple.

19. The learned learned Additional Advocate General, appearing on behalf of the respondents 1 to 3, had relied on the following decisions:

19.1. In PANNALAL BANSILAL PITTI Vs. STATE OF A.P. (1996) 2 SCC 498 [LQ/SC/1996/125] ), the Supreme Court had held that the right to establish a religious institution or endowment is a part of religious belief or faith, but its administration is a secular part, which would be regulated by law appropriately made by the legislature. The regulation is only in respect of the administration of the secular part of the religious institution or endowment, and not of beliefs, tenets, usages and practices, which are an integral part of that religious belief or faith.

19.2. The learned Government Pleader appearing on behalf of the respondents had relied on the decision of the Division Bench of this Court, reported in N.SIVASUBRAMANIAN Vs. THE GOVERNMENT OF TAMIL NADU BY SECRETARY H.R. & C.E. (2006 (2) CTC 49 [LQ/MadHC/2006/336] ), to state that the Hindu Religious and Charitable Endowments Department has a right to exercise powers, under the Hindu Religious and Charitable Endowments Act, 1959, even against the denominational institution temples for the better and proper administration or to prevent the mal-administration of such religious institution.

19.3. In SRI SABHANAYAGAR TEMPLE, CHIDAMBARAM, Vs. THE STATE OF TAMIL NADU & OTHERS (2009-4-L.W.705), this Court had held as follows:

"72. Rule 6(A) also makes this clear that the office holders and servants shall work under the immediate control over the Superintendence of Executive Officer, subject to the disciplinary control of the Secretary of Podhu Dikshidars under section 56 of the H.R.& C.E. Act. Thus, it is not as if by the appointment of Executive Officer, the Podhu Dikshidars are displaced from the temple in performance of rituals or administration. Only for better management and, for efficient administration of a great ancient temple, it has been stipulated in the rule both the Executive Officer and Podhu Dikshidars are to function in co-ordination with each other. Therefore, it is very clear that there is a clear demarcation of the powers to be exercised by the Executive Officer and Podhu Dikshidars, which could only for better and efficient administration of the temple."

19.4. In T.VELLALA SAMUDHAYAM Vs. STATE OF TAMIL NADU (1980 (2) M.L.J.358), this Court had held that the contribution and audit fee would be leviable on any public temple. Even a denominational temple, so long as it is not a private one, would be liable to the contribution and the audit fee. Therefore, except in the matter of declaration and any relief in consequence no other relief can be granted to the plaintiff.

19.5. In THE ASSISTANT COMMISSIONER, HINDU RELIGIOUS AND CHARITABLE ENDOWMENT, SALEM, AND OTHERS ETC., Vs. NATTAMAI K.S.ELLAPPA MUDALIAR AND OTHERS (AIR 1987 MADRAS 187), this Court had held that a person cannot seek to advance the claims of a group of persons or community without adopting the procedure under O. 1, R. 8, Code of Civil Procedure, if the relief is prayed for only on the basis of the rights of the community as such. A distinction has to be maintained between cases where the individual put forward a right which he has acquired as a member of a community and cases where the right of the community is put forward in the suit. If it is the former, the individual is not debarred from maintaining the suit in his own right, in respect of a wrong done to him, even though the act complained of may also be injurious to some other persons having the same right. If it is the latter, the procedure under O.11 R.8 Civil Procedure has to be followed and without doing so, no relief could be granted to the individual concerned. Where the plaintiffs are putting forward the rights of the community as such and claiming themselves to be the chosen representatives of the community the suit would not be maintainable in the absence of compliance with Rule 8 of Order 1.

20. In view of the contentions raised by the learned counsels appearing on behalf of the appellants and the respondents and in view of the records available and on considering the decisions cited, we do not find sufficient cause or reason to interfere with the order, dated 23.7.2004, made in W.P.Nos.15468 and 15469 of 2003.

21. It is found that the contentions raised on behalf of the appellants does not carry any conviction to set aside the impugned orders of the first and the second respondents. The appointment of the fit person to administer the affairs of the appellant temple cannot be said to be arbitrary or invalid. Such an appointment has been made only in accordance with the relevant provisions of the Tamilnadu Hindu Religious and Charitable Endowments Act, 1959, as well as the scheme decree.

22. Even though certain observations had been made in the judgment, dated 2.3.1974, made in O.S.No.6784 of 1971, there is nothing in the decree declaring the appellant temple as a religious denominational institution. Even otherwise, it would not be open to the appellants to contend that the authorities concerned do not have the power to appoint an executive officer or a fit person, under the provisions of the Tamilnadu Hindu Religious and Charitable Endowments Act, 1959, to administer the affairs of the appellant temple. Therefore, it is not open to the appellants to claim that a fit person can be appointed only from the Sengundar Mudaliar community. Further, the learned counsel appearing for the appellants has not been in a position to show any provision of law or a clause in the scheme decree, framed for the administration of the temple, in O.S.No.43 of 1919, to support his contentions.

23. It is not in dispute that, neither the original scheme decree, framed on 23.4.1924, made in O.S.No.43 of 1919, nor the modification made subsequently, had been successfully contested by the parties concerned. Even though the scheme decree lays down certain procedures for the administration of the appellant temple, it cannot be said that the appointment of an executive officer or a fit person by the authorities concerned, as per the provisions of the Tamilnadu Hindu Religious and Charitable Endowments Act, 1959, had infringed the rights of the trustees of the appellant temple in managing its affairs. Even the religious rights, recognised under Articles 25 and 26 of the Constitution of India, would be subject to certain reasonable restrictions. Therefore, the appointment of the fit person to administer the affairs of the appellant temple, as per the provisions of the Tamilnadu Hindu Religious and Charitable Endowments Act, 1959, cannot be said to be violative of the rights of the trustees of the appellant temple, as recognized under Articles 25 and 26 of the Constitution of India. When certain serious allegations of mismanagement of the appellant temple by its trustees had been alleged, it is not open to the trustees concerned to claim that the appointment of the fit person to manage the affairs of the appellant temple is contrary to the relevant provisions of law.

24. It is also noted that certain clarifications had been issued by the Commissioner, Hindu Religious and Charitable Endowments Department, Chennai, on 16.4.2004 and 18.5.2004, without affording a reasonable opportunity of hearing to the parties concerned. In the common Judgment passed by this Court, on 7.9.2011, in A.S.Nos.271 of 2007, A.S.No.4 of 2011 and in the writ petition, in W.P.No.16890 of 2004, this Court had set aside the clarificatory orders issued by the Commissioner, Hindu Religious and Charitable Endowments Department, Chennai, on 16.4.2004 and 18.5.2004 and had remitted the matter back to him for issuing an appropriate order, afresh, after giving an opportunity of hearing to the parties concerned, on merits and in accordance with law. On such orders being passed by the Commissioner of Hindu Religious and Charitable Endowments, Chennai, as directed by this Court, by its order, dated 7.9.2011, elections to the posts of trustees of the appellant temple may be held, as per the regulations prescribed in the scheme decree and the relevant provisions of law, for the administration of the appellant temple. However, it would not be open to the appellant to claim, at this juncture, that the impugned orders passed by the first and the second respondents are invalid in the eye of law. As a matter of fact, the appointment of the fit person has been made only as an interim measure. As such, the appellants cannot have a valid grievance for such an appointment being made, until the trustees are elected, as per the regulations prescribed by the scheme decree and in accordance with the relevant provisions of law. The claim of the appellant that a fit person should be appointed only from amongst the members of the Sengundar Mudaliar community cannot be canvassed, as there is no provision of law prescribing such a condition. Admittedly, the learned counsel appearing for the appellants is not in a position to show the existence of such a provision, either under the scheme decree or in the provisions of the Tamilnadu Hindu Religious and Charitable Endowments Act, 1959, and in the rules framed thereunder.

25. In view of the order passed by this Court, in A.S.No.271 of 2007, A.S.No.4 of 2011 and W.P.No.16890 of 2004, directing the Commissioner, Hindu Religious and Charitable Endowments Department, Chennai, to reconsider and pass appropriate orders, on merits and in accordance with law, on the letter, dated 14.4.2004, issued by one R.Ramakrishnan, on behalf of the defendants in the suit, in O.S.No.5545 of 2004, seeking clarification regarding the order of the first respondent dated 24.3.2004, made in A.S.No.12 of 2003, we do not find any merits in the present writ appeals. Hence, the writ appeals stand dismissed. No costs. Connected W.A.M.P.Nos.6713 and 6714 of 2004 are closed.