# DR. SUBRAMANIAN SWAMY v. STATE OF TAMIL NADU & ORS

- **Citation:** [2014] 1 S.C.R. 308
- **Court:** Supreme Court of India
- **Decided:** 2014-01-06
- **Case number:** Civil Appeal No. 10620 of 2013
- **Bench:** Dr. B. S. Chauhan, S.A. Bobde
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dr-subramanian-swamy-v-state-of-tamil-nadu-ors-29730
- **Pages:** 42

## Headnote

CONSTITUTION OF IND/A, 1950:
c
Art. 26 -
Freedom to manage religious affairs -
'Religious denomination' - Connotation of - Held: Art. 26(d)
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,
0 acquire, establish and maintain such properties -
Rights of
'denominational religious institutions' are to be preserved and
protected from any invasion by State as guaranteed under Art.
26 and as statutorily embodied in s.107 of Madras Hindu
Religious and Charitable Endowments Act, 1959 -
A law
which takes away the right to administer religious
E denomination altogether and vests it in any other authority
would amount to a violation of right guaranteed in clause (d)
of Art. 26 -
Madras Hindu Religious and Charitable
Endowments Act, 1959 -s. 107.
F
MADRAS HINDU RELIGIOUS AND CHARITABLE
ENDOWMENTS ACT, 1959:
s. 107 rl w ss. 44 and 45 (2) - Protection of rights of
'religious denomination' in consonance with Art. 26 of
G Constitution of India - Rights of Oikshitars to maintain Sri
Sabhanayagar Temple at Chidambaram -
Appointment of
Executive Officer to maintain the Temple - Writ petition
dismissed by High Court holding that the earlier judgment in
H
308
DR. SUBRAMANIAN SWAMY v. STATE OF TAMIL
309
NADU
Marimuthu Dikshitar1 did not operate as res judicata ~ Held: A
' In Marimuthu Dikshitar, which had attained finality, it was
recognized: (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
B
and established for over several centuries -
These issues
stood finally determined by High Court and, thus, doctrine of
res judicata is applicable in full force - The declaration that
"Dikshitars are religious denomination or section thereof' is
a declaration of their status and making such declaration is c
a judgment in rem -
Res judicata - Code of Civil Procedure,
1908 - 0. 47, r. 1 - Review.
s. 107 rlw ss. 45 and 116 -
Appointment of Executive
Officer to
manage Sri Sabhanayagar Temple at
Chidambaram -
Held: In view of the fact that rights of D
Dikshitars to administer·the Temple had already been finally
determined by High Court in 1951, State authorities under the
Act 1959 could not pass any order denying those rights -
Act 1959 had been enacted after pronouncement of the
judgment in Marimuthu Dikshitar's case, but there is nothing
E
in the Act taking away the rights of Dikshitars declared by the
court, in the Temple or in the administration thereof -
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.
F
ss. 44 and 45 r/w s. 107 - Super-session of administration
of Temple - Held: 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 G
of the consequences of ma/administration -
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
1.
Marimuthu Dikshitar v. The State of Madras & Anr. 1952 (1) MLJ 557.
H
310
SUPRFME COURT REPORTS
[2014) 1 S.C.R .
. I\ thereafter would tantamount to usurpation of such proprietary
rights or violation of fundamental rights guaranteed by the
Constitution in favour of the person(s) concerned -
Impugned order is liable to be set aside for failure to prescribe
the duration for which it will be in force.
B
Code of Civil Procedure, 1908;
0.47, r5 - Review - Scope of- Explained - Held: Even
an erroneous decision cannot be a ground for the court to
undertake review, as the first and foremost requirement of
C entertaining a review petition is that the order, review of which
is sought

## Text

_Characters 0–39,786 of 77,237. This is a partial read: ask again with offset=39786 for what follows._

A
B
[2014] 1 S.C.R. 308
DR. SUBRAMANIAN SWAMY
v.
STATE OF TAMIL NADU & ORS.
(Civil Appeal No. 10620 of 2013)
JANUARY 6, 2014
[DR. B. S. CHAUHAN AND S.A. BOBDE, JJ.]
CONSTITUTION OF IND/A, 1950:
c
Art. 26 -
Freedom to manage religious affairs -
'Religious denomination' - Connotation of - Held: Art. 26(d)
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,
0 acquire, establish and maintain such properties -
Rights of
'denominational religious institutions' are to be preserved and
protected from any invasion by State as guaranteed under Art.
26 and as statutorily embodied in s.107 of Madras Hindu
Religious and Charitable Endowments Act, 1959 -
A law
which takes away the right to administer religious
E denomination altogether and vests it in any other authority
would amount to a violation of right guaranteed in clause (d)
of Art. 26 -
Madras Hindu Religious and Charitable
Endowments Act, 1959 -s. 107.
F
MADRAS HINDU RELIGIOUS AND CHARITABLE
ENDOWMENTS ACT, 1959:
s. 107 rl w ss. 44 and 45 (2) - Protection of rights of
'religious denomination' in consonance with Art. 26 of
G Constitution of India - Rights of Oikshitars to maintain Sri
Sabhanayagar Temple at Chidambaram -
Appointment of
Executive Officer to maintain the Temple - Writ petition
dismissed by High Court holding that the earlier judgment in
H
308
DR. SUBRAMANIAN SWAMY v. STATE OF TAMIL
309
NADU
Marimuthu Dikshitar1 did not operate as res judicata ~ Held: A
' In Marimuthu Dikshitar, which had attained finality, it was
recognized: (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
B
and established for over several centuries -
These issues
stood finally determined by High Court and, thus, doctrine of
res judicata is applicable in full force - The declaration that
"Dikshitars are religious denomination or section thereof' is
a declaration of their status and making such declaration is c
a judgment in rem -
Res judicata - Code of Civil Procedure,
1908 - 0. 47, r. 1 - Review.
s. 107 rlw ss. 45 and 116 -
Appointment of Executive
Officer to
manage Sri Sabhanayagar Temple at
Chidambaram -
Held: In view of the fact that rights of D
Dikshitars to administer·the Temple had already been finally
determined by High Court in 1951, State authorities under the
Act 1959 could not pass any order denying those rights -
Act 1959 had been enacted after pronouncement of the
judgment in Marimuthu Dikshitar's case, but there is nothing
E
in the Act taking away the rights of Dikshitars declared by the
court, in the Temple or in the administration thereof -
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.
F
ss. 44 and 45 r/w s. 107 - Super-session of administration
of Temple - Held: 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 G
of the consequences of ma/administration -
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
1.
Marimuthu Dikshitar v. The State of Madras & Anr. 1952 (1) MLJ 557.
H
310
SUPRFME COURT REPORTS
[2014) 1 S.C.R .
. I\ thereafter would tantamount to usurpation of such proprietary
rights or violation of fundamental rights guaranteed by the
Constitution in favour of the person(s) concerned -
Impugned order is liable to be set aside for failure to prescribe
the duration for which it will be in force.
B
Code of Civil Procedure, 1908;
0.47, r5 - Review - Scope of- Explained - Held: Even
an erroneous decision cannot be a ground for the court to
undertake review, as the first and foremost requirement of
C 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
i'he judgment/order cannot be disturbed.
D
RES JUD/CATA:
Res judicata - Meaning of - Explained - Maxims, "res
;udicata pro varitate accipitur", "interest reipub/icae ut sit finis
litium" and ·nemo debet bis vexari pro uno et eadem causa".
E
A Notification No.G.O.Ms.894 dated 28.8.1951
notifying Sri Sabhanayagar Temple at Chidambaram (the
,.,.Jmple') to be subjected to the provisions of Chapter VI
of the Madras Hindu Religious and Charitable
;: ndowments Act 1951 was issued enabling the
F Government to promulgate a Scheme for the
management of the Temple. The Hindu Religious
Endowments Board, Madras (the 'Board'), by order dated
: ·; .8. 1951, appointed an Executive Officer for the
menagement of the Temple etc. The Dikshitars, i.e.
G respondent no.6 and/or their predecessors-in-interest,
1:":110 claimed to have been called for the establishment
oi the Temple in the name of Lord Natraja, and had been
cdministering it for a long time, challenged the said orders
dated 28.8.1951 and 31.8.1951 by filing Writ Petition Nos.
H 3 79-380 of 1951 before the High Court, which by
DR. SUBRAMANIAN SWAMY v. STATE OF TAMIL
311
NADU
judgment and order dated 13.12.1951 in Marimuthu A
Dikshitar, allowed the writ petition holding that the
Dikshitars constituted a 'religious denomination' and their
position vis-a-vis the Temple was analogous to
muttadhipati of a mutt; and the orders impugned in the
writ petitions were violative of the provisions of Art. 26
8
of the Constitution. The appeals filed by the State
Government before the Supreme Court stood dismissed,
as the notification was withdrawn by the State
Government. Subsequently, the Act 1951 was repealed
by the Madras Hindu Religious and Charitable c
Endowments Act, 1959. The Commissioner of Religious
Endowment, in exercise of power under the Act 1959,
appointed an Executive Officer for administration of the
Temple. The writ petition filed by respondent no. 6 was,
ultimately, dismissed by single Judge of the High Court
0
holding that the judgment in Marimuthu Dikshitar, would
not operate as res judicata. The writ appeal was also
dismissed by the Division Bench of the High Court.
In the instant appeals it was contended for the
appellants that the Dikshitars had been declared, 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. It was further submitted that the High Court
committed an error by holding that the earlier judgment
of the Division Bench in Marimuthu Dikshitar would not
operate as res judicata.
Allowing the appeals, the Court
HELD: 1.1. The rights of the 'denominational religious
institutions' are to be preserved and protected from any
invasion by the State as guaranteed under Art. 26 of the
Constitution, and as statutorily embodied in s.107 of the
E
F
G
H
312
SUPREME COURT REPORTS
[2014] 1 S.C.R.
A Madras Hindu Religious and Charitable Endowments Act,
1959. [para 9] [329-B-C]
1.2. The term 'religious denomination' means
collection of individuals having a system of belief, a
8 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. [para 10] [329-D, E-F]
C
Acharya Maharajshri Narendra Prasadji Anandprasadji
Maharaj etc. etc. v. The State of Gujarat & Ors. 1975 (2) SCR
317 =AIR 1974 SC 2098; T.M.A. Pai Foundation & Ors. v.
State of Karnataka & Ors., 2002 (3) Suppl. SCR 587 =AIR
2003 SC 355; and Nal/or Marthandam Veflalar & Ors. v.
D Commissioner, Hindu Religious and Charitable Endowments
& Ors., 2003 (1) Suppl. SCR 920 = AIR 2003 SC 4225 -
relied on.
1.3. The right to maintain institutions would
E necessarily include the right to administer them. Art. 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
F maintain such properties. [para 11-12] [330-C-E-F]
G
H
S. Azeez Basha & Anr. v. Union of India, 1968 SCR
833 =AIR 1968 SC 662; and Khajamian Wakf Estates etc.
v. State of Madras etc. 1971 (2) SCR 790 = AIR 1971 SC
161 relied on.
Central Bank of India v. Ravindra & Ors. 2001 (4) Suppl.
SCR 323 =AIR 2001 SC 3095; Ombalika Das & Anr. · v.
Hulisa Shaw 2002 (2) SCR 902 = AIR 2002 SC 1685 -
referred to.
DR. SUBRAMANIAN SWAMY v. STATE OF TAMIL
313
NADU
2.1. It is evident from the judgment of the High Court
A
in Marimuthu Dikshitar, 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
B
of the Temple; and (c) It was their exclusive privilege
which had been recognised and established for over
several centuries. These issues stood finally determined
by the High Court in the earlier judgment of Marimuthu
Dikhsitars, as the State Government had withdrawn the
C
notification in the appeal before this Court and, thus,
doctrine of res judicata is applicable in full force.[para
18,21, and 36] [334-H; 335-A; 336-G-H; 337-A-B; 343-E]
2.2. An issue in a case between the same parties,
which had been finally determined could not be negated
D
relying upon interpretation of law given subsequently in
some other cases. The correctness or otherwise of a
judicial decision has no bearing upon the question
whether or not it operates as res judicata. It is a settled
legal proposition that the ratio of any decision must be
E
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. [para 22,
24 and 31] [337-C-D; 338-A; 341-D]
Shah Shivraj Gopafji v. ED-, Appakadh Ayiassa Bi &
Ors., AIR 1949 PC 302; and Mohan/al Goenka v. Benoy
Kishna Mukherjee & Ors.,
1953 SCR 377 =AIR 1953 SC
65 ; Smt. Raj Lakshmi Dasi & Ors. v. Banamali Sen & Ors.,
F
1953 SCR 154 =AIR 1953 SC 33, Sheoparsan Singh v.
Ramnandan Singh, AIR 1916 PC 78; Satyadhyan Ghosal &
G
Ors. v. Smt. Deorajin Debi & Anr. 1960 SCR 590 = AIR 19SO
SC 941 ; Daryao & Ors. v. The State of U. P. & Ors. 1962
SCR
574 = AIR 1961 SC 1457; Greater Cochin
Development Authority v. Leelamma Va/son & Ors., AIR 2002
H
314
SUPREME COURT REPORTS
[2014] 1 S.C.R.
A SC 952; and Bhanu Kumar Jain v. Archana Kumar & Anr.,
2004 (6)
Suppl. SCR 1104 = AIR 2005 SC 626;
Amalgamated Coalfields Ltd. & Anr. v. Janapada Sabha
Chhindwara & Ors., 1963 Suppl. SCR 172 =AIR 1964 SC
1013; Hope Plantations Ltd. v. Taluk Land Board, Peermade
B & Anr. 1998 ( 2 ) Suppl. SCR 514 = (1999) 5 sec 590;
Bum & Co., Calcutta v. Their Employees 1956 SCR 781 =
AIR 1957 SC 38; G.K. Dudani & Ors. v. S.D. Sharma & Ors.
1986 SCR 250 = AIR 1986 SC 1455; and Ashok Kumar
Srivastav v. National Insurance Co. Ltd. & Ors., 1998 (2)
C SCR 1199 =AIR 1998 SC 2046; The State of Punjab v. Bua
Das Kaushal AIR 1971 SC 1676; Union of India v. Nanak
Singh 1968 SCR 887 =AIR 1968 SC 1370 - referred to.
2.3. The declaration that "Dikshitars are religious
denomination or section thereof" is in fact a declaration
D of their status and making such declaration is in fact a
judgment in rem. [para 32] [341-G]
Madan Mohan Pathak & Anr. v. Union of India & Ors.
1978 ( 3 ) SCR 334 = AIR 1978 SC 803; and State of
E Gujarat & Anr: v. Mr. Justice R.A. Mehta (Retd.) & Ors. 2013
(1 ) SCR 1 = AIR 2013 SC 693 - referred to.
2.4. Further, Explanation to Order XLVll, Rule 1 of
Code of the Civil Procedure, 1908 provides that if the
decision on a question of law on which the judgment of
F 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
G 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. [para 35] [343-B-D]
H
DR. SUBRAMANIAN SWAMY v. STATE OF TJ\MIL
315
NADU
Rajendra Kumar & Ors. v. Rambhai & Ors., AIR 2003 SC
A
2095 -
relied on
2.5. Thus, 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.
B
Even otherwise, the High ~ourt has committed an error
in holding that the said judgment in Marimuthu Dikshitar
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
C
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. [para 38] [344-C-E]
D
3.1. Admittedly, the Act 1959 had been enacted after
pronouncement of the judgment in Marimuthu Dikshitar,
but there is nothing in the Act taking away the rights of
respondent no. 6, declared by the court, in the Temple or
E
in the administration thereof. Therefore, the State
authorities under the Act 1959 could not pass any order
denying those rights. [para 36] [343-E-F]
3.2. The fundamental rights as protected under Art.
26 of the Constitution are already indicated for
observance in s.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 G
duration, and not an authority to virtually abrogate the
rights of administration conferred on it. In such a factsituation, 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
F
H
316
SUPREME COURT REPORTS
[2014] 1 S.C.R.
A in this regard are liable to be held inconsequential and
unenforceable. [Para 37] [343-G-H; 344-A-B]
3.3. 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
8 Act to be prescribed". 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. [s.2(16) CPC]. If the word 'prescribed'
C 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. [para 40 and 43] [344-H;
D 345-A, G-H; 346-A]
Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth
Hirata/, 1962 Suppl. SCR 450 = AIR 1962 SC 527;
Hindustan Ideal Insurance Co. Ltd. v. Life Insurance
E Corporation of India, 1963 Suppl. SCR 56 = AIR 1963 SC
1083; Maharashtra SRTC v. Babu Goverdhan Regular Motor
Service Warora & Ors., 1970 ( 2) SCR 319 =AIR 1970 SC
1926; and Bharat Sanchar Nigam Ltd. & Anr. v. BPL Mobile
Cellular Ltd. & Ors.,
2008 (8) SCR 729 = (2008) 13 SCC
597 - relied on.
F
G
3.4. 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. [Para 44] [346-D-E]
M.E. Subramani & Ors. v. Commissioner, HR&CE &
Ors., AIR 1976 Mad 264 - disapproved.
3.5. Super-session of rights of administration cannot
be of a permanent enduring nature. Its life has to be
H reasonably fixed so as to be co-terminus with the removal
DR. SUBRAMANIAN SWAMY v. STATE OF TAMIL
317
NADU
of the consequences of maladministration. The reason is A
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. ·Even if the
management of a temple is taken over to remedy the evil, B
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 c
persons deprived. This Court is 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. [para
47] [347-G-H; 348-A-D]
Sri Sri Sri Lakshamana Yatendru/u & Ors. v. State of A.P. D
& Anr. 1996 (1) SCR 929 =AIR 1996 SC 1414 - referred to.
3.6. Power to regulate does not mean power to
supersede the administration for indefinite period. The
word 'regulate' is a word of broad import, having a broad E .
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 F
word 'regulate' is elastic enough to include issuance of
directions etc. [para 47] [348-E-F]
K. Ramanathan v. State of Tamil Nadu & Anr., 1985 (2)
SCR 1028 = AIR 1985 SC 660; and Balmer Lawrie &
Company Limited & Ors. Partha Sarathi Sen Roy & Ors. G
(2013) 8 sec 345 - referred to.
3.7. Even otherwise it is riot permissible for the State/
Statutory Authorities to supersede the administration by
adopting any oblique/circuitous method. [para 48] [348-H] H
318
SUPREME COURT REPORTS
[2014] 1 S.C.R.
A
Sant Lal Gupta & Ors. v. Modem Coop. Group Housing
Society Ltd. & Ors. 2010 (13) SCR 621 = (2010) 13 SCC 336;
Jagir Singh v. Ranbir Singh 1979 (2) SCR 282 = AIR 1979 SC
381; A.P. Diary Dev. Corporation federation v. B. Narsimha
Reddy & Ors. 2011 (14) SCR 1 =AIR 2011 SC 3298; and
B . State of Tamil Nadu & Ors. v. K. Shyam Sunder & Ors. 2011
(11) SCR 1094 = AIR 2011 SC 3470 - referred to.
3.8. The Constitution Bench of this Court in Shirur
Mutt categorically held that a law which takes away the
C 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 Art. 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
D 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 as are felt most
acute and provide a remedy therefor. [para 15] [332-E-G]
E
The Commissioner, Hindu Religious Endowments,
Madras v. Sri Lakshmindra Tirtha Swamiar of Sri Shirur Mutt
1954 SCR 1005 = 1954 SC 282 - relied on.
Ratilal Panachand Gandhi & Ors. v. State of Bombay &
Ors. 1954 SCR 1035 = AIR 1954 SC 388; and Pannalal
F
Bansilal Pitti & Ors. v. State of A.P. & Anr. 1996 (1) SCR 603 =
AIR 1996 SC 1023 - referred to.
3.9. In view of the provisions of ss.44 and 45(2) of the
Act 1959, the State Government can regulate the secular
G activities without interfering with the religious activities.
[para 17] [334-F-G]
3.10. The power under the Act 1959 for appointment
of an Executive Officer could not have been exercised in
H the absence of any prescription of circumstances/
DR. SUBRAMANIAN SWAMY v. STATE OF TAMIL
319
NADU
conditions in which such an appointment may be made. A
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, B
illegal and unjust. Therefore, judgments/orders impugned
are set aside. [para 49-50) (349-E-G)
Case Law Reference:
1954 SCR 1005
relied on
2001 (4) Su~pJ SCR 323 referred to
2002 (2) SCR 902
referred to
1975 (2) SCR 317
relied on
2002 (3) Suppl. SCR 587
relied on
2003 (1) Suppl. SCR 920
relied on
1968 SCR 833
relied on
1971 (2) SCR 790
1996 (1) SCR 929
1954 SCR 1035
1996 (1) SCR 603
AIR 1949 PC 302
1953 SCR 377
1953 SCR 154
AIR 1916 PC 78
1960 SCR 590
1962 SCR 574
relied on
referred to
referred to
referred to
referred to
referred to
referred to
referred to
referred to
referred to
para 2
para 8
Para 8
para 10
para 10
para 10
para 11
pa;a 12
para 13
para 15
para 15
para 24
para 24
c
D
E
F
para 25
G
para 25
para 26
Para 26
H
•
320
SUPREME COURT REPORTS
[2014] 1 S.C.R.
A
AIR 2002 SC 952
referred to
Para 26
2004 (6) Suppl. SCR 1104 referred to
Para 26
1963 Suppl. SCR 172
referred to
para 27
B
1998 (2) Suppl. SCR 514
referred to
para 28
1956 SCR 781
referred to
para 28
1986 SCR 250
referred to
para 28
1998 (2) SCR 1199
referred to
para 28
c
AIR 1971 SC 1676
referred to
para 29
1968 SCR 887
referred to
para 30
1978 (3) SCR 334
referred to
para 33
D
2013 (1) SCR 1
referred to
para 34
AIR 2003 SC 2095
relied on
para 35
1962 Suppl. SCR 450
relied on
para 45
E
1963 Suppl. SCR 56
relied on
para 45
1970 (2) SCR 319
relied on
para 45
2008 (8) SCR 729
relied on
para 45
F
AIR 1976 Mad 264
disapproved Para 44
1985 (2) SCR 1028
referred to
para 47
(2013) 8 sec 345
referred to
para 48
2010 (13) SCR 621
referred to
para 48
G
1979 ( ) SCR 282
referred to
para 48
2011 (14) SCR1
referred to
para 48
2011 (11) SCR 1094
referred to
para 48
H
DR. SUBRAMANIAN SWAMY v. STATE OF TAMIL
321
NADU
CIVIL APPELLATE JURIS.DICTION : Civil Appeal No.
A
10620 of 2013.
From the Judgment and Order dated 15.09.2009 of the
High Court of Judicature at Madras in W.A.(C) No. 181 of 2009.
WITH
B
C.A. Nos. 10621 and 10622 of 2013.
R. Venkataramani, C.S. Vaidyanathan, Dhruv Mehta,
Colin Gonsalves, Subramonium Prasad, AAG, Dr.
Subramanian Swamy (Petitioner-In-Person), Dr. Roxna S. c
Swamy, lshkaran Singh Bhandari, Supriya Manan, V.
Vijaylakshmi, Bindu K. Nair, Chandra Shekhar, Neelam Singh,
Shodhan Babu, Pavni Poddar (for K.R. Sasiprabhu), K.
Parameshwawr, S.R. Setia, P.R. Kovilan Poongkuntran, Geetha
Kovilan, S. Raju, Melton, R. Sagadevan. R.V. Kameshwaran, 0
M. Yogesh Kanna, A. Santha Kumaran, Vanita C. Giri, B.
Balaji, Govindar'amanuja Dasu (Respondent-In -Person in C.A.
No. 10621 of 2013), Abhisth Kumar, Naresh Kumar, S.K.
Verma for the appearing parties.
The Judgment of the Court was delivered by
E
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
F
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 G
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
H
322
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[2014] 1 S.C.R.
A
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
B
Charitable Endowments Act 1959 (hereinafter referred to as
the 'Act 1959').
Civil Appeal No. 1062112013 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
C 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
0
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
E
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
F
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.
G
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.
H
D. The Dikshitars, i.e. respondent no.6 and/or their
DR. SUBRAMANIAN SWAMY v. STATE OF TAMIL
323
NADU [DR. B. S. CHAUHAN, J.]
predecessors in interest challenged the said orders dated
A
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-a-vis the Temple was
B
· 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 C
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, Al R 1954 SC
282 (hereinafter referred to as 'Shirur Mutt Case'), the Act D
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.
E
F. On 31.7.1987, the Commissioner of religious
endowment in exercise of his power under the Act 1959
appointed an Executive Officer. Consequent therJto, the
Commissioner HR&CE passed an order dated 5.8.1987
F
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 G
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.145of1997 and the High Court vide its judgment and order H
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[2014] 1 S.C.R.
A
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.
B
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
C
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
D
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:
E
"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
F
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
G
dismissed by the High Court vide judgment and order dated
2.2.2009 observing that !he 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
H
denomination', would not operate as res judicata . .
DR. SUBRAMANIAN SWAMY v. STATE OF TAMIL
325
NADU [DR. B. S. CHAUHAN, J.]
K. Aggrieved, the respondent no.6 filed Writ Appeal
A
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 c.onfers certain fundamental rights upon the
citizens and particularly, on a 'religious denomination' which
B
can neither be taken away nor abridged. In the instant case,
C
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
D
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
E
by holding that the earlierjudgment of the Division Bench in
Marimuthu Dikshitar (Supra) would not operate as res judicata.
Therefore, the appeal deserves to be allowed.
F
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 ~he 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
G
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
H
326
SUPREME COURT REPORTS
[2014] 1 S.C.R.
A neither owned by respondent No. 6, nor established by it. Thus,
the appeal is liable to be dismissed.
Shri Subramonium Prasad, learned Addi. Advocate
General appearing for the State and the Statutory authorities
8 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
C 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
o relevant to refer to the relevant statutory provisions.
E
F
G
H
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 exercis~.._,such powers and
discharge such duties as may be assig'ned 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.
DR. SUBRAMANIAN SWAMY v. STATE OF TAMIL
327
NADU [DR. B. S. CHAUHAN, J.]
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:
A.
"Nothing contained in this Act shall, save as
B
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."
C
Section 116 of the Act 1959 reads as under:
"116. Power to make rules-
(1) The Government may, by nptification, make rules to
D
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 require·d or allowed by this Act to
E
be prescribed;
xx
xx
xx
(3) All rules made and all notifications issued under this
F
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."
G
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
H
328
SUPREME COURT REPORTS
[2014] 1 S.C.R.
A
denomination or any section thereof shall have the right -
B
c
(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
0
Bank of India v. Ravindra & Ors., AIR 2001 SC 3095 dealt
with the word "such" and held as under:
E
F
G
H
"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
DR. SUBRAMANIAN SWAMY v. STATE OF TAMIL
329
NADU [DR. B. S. CHAUHAN, J.]
the expression having been defined or characterised and A
at the latter place having been qualified by use of the
word "such", are situated in close proximity."
(See also: Ombalika Oas & 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.
B
c
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 0
public order, morality and health and not subject to any other
provision of Part 111 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 E
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 F
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 Nailor Marthandam Vellalar & Ors. v. Commissioner,
Hindu Religious and Charitable Endowments & Ors., AIR 2003
G
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 H
330
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[2014] 1 S.C.R.
A
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
B 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
c 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
D
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
E their property.