Even otherwise, a different view on the interpretation of the law
may be possible but the same should not be accepted in case it has the
effect of unsettling transactions which had been entered into on the
basis of those decisions, as reopening past and closed transactions or
settled titles all over would stand jeopardized and this would create a
chaotic situation which may bring instability in the society.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.10620 OF 2013
Dr. Subramanian Swamy
Versus
State of Tamil Nadu & Ors.
Dr. B. S. CHAUHAN, J.
Citation;(2014) 1 SCALE 79
All these appeals have been filed against the impugned
judgment and order dated 15.9.2009 passed in Writ Appeal No.181 of
2009 by the High Court of Madras affirming the judgment and order
dated 2.2.2009 of the learned Single Judge passed in Writ Petition
No.18248 of 2006 rejecting the claim of the writ petitioner – Podhu
Dikshitars to administer the Temple.
In Civil Appeal No. 10620/2013, the appellant has raised the
issue of violation of the constitutional rights protected under Article
26 of the Constitution of India, 1950 (hereinafter referred to as
‘Constitution’) in relation to the claim by Podhu Dikshitars (Smarthi
Brahmins) to administer the properties of the Temple in question
dedicated to Lord Natraja. The same gains further importance as it
also involves the genesis of such pre-existing rights even prior to the
commencement of the Constitution and the extent of exercise of State
control under the statutory provisions of The Madras Hindu Religious
and Charitable Endowments Act 1951 (hereinafter referred to as the
‘Act 1951’) as well as the Tamil Nadu Hindu Religious and
Charitable Endowments Act 1959 (hereinafter referred to as the ‘Act
1959’).
2
Page 2
Civil Appeal No. 10621/2013 is on behalf of Podhu Dikshitars
claiming the same relief and Civil Appeal No. 10622/2013 has been
filed by the appellants supporting the claim of the appellant in Civil
Appeal No. 10621/2013.
2.
For convenience in addressing the parties and deciding the
appeals, we have taken Civil Appeal No. 10620/2013 as the leading
appeal. The facts and circumstances giving rise to the appeal are as
under:
A.
That Sri Sabhanayagar Temple at Chidambaram (hereinafter
referred to as the ‘Temple’) is in existence since times immemorial
and had been administered for a long time by Podhu Dikshitars (all
male married members of the families of Smarthi Brahmins who
claim to have been called for the establishment of the Temple in the
name of Lord Natraja).
B.
The State of Madras enacted the Madras Hindu Religious and
Charitable Endowments Act, 1927 (hereinafter referred to as the ‘Act
1927’), which was repealed by the Act 1951.
A Notification
No.G.O.Ms.894 dated 28.8.1951 notifying the Temple to be subjected
3
Page 3
to the provisions of Chapter VI of the Act 1951 was issued. The said
notification enabled the Government to promulgate a Scheme for the
management of the Temple.
C.
In pursuance to the same, the Hindu Religious Endowments
Board, Madras (hereinafter called the ‘Board’) appointed an
Executive Officer for the management of the Temple in 1951 vide
order dated 28.8.1951 etc.
D.
The Dikshitars, i.e. respondent no.6 and/or their predecessors in
interest challenged the said orders dated 28.8.1951 and 31.8.1951 by
filing Writ Petition nos. 379-380 of 1951 before the Madras High
Court which were allowed vide judgment and order dated 13.12.1951
quashing the said orders, holding that the Dikshitars constituted a
‘religious denomination’ and their position vis-à-vis the Temple was
analogous to muttadhipati of a mutt; and the orders impugned therein
were violative of the provisions of Article 26 of the Constitution.
E.
Aggrieved, the State of Madras filed appeals before this Court,
which stood dismissed vide order dated 9.2.1954 as the notification
was withdrawn by the State-respondents. After the judgment in the
aforesaid case as well as in The Commissioner, Hindu Religious
4
Page 4
Endowments, Madras v. Sri Lakshmindra Tirtha Swamiar of Sri
Shirur Mutt, AIR 1954 SC 282 (hereinafter referred to as ‘Shirur
Mutt Case’), the Act 1951 was repealed by the Act 1959. Section 45
thereof empowers the Statutory Authorities to appoint an Executive
Officer to administer the religious institutions. However, certain
safeguards have been provided under various provisions including
Section 107 of the Act 1959.
F.
On 31.7.1987, the Commissioner of religious endowment in
exercise of his power under the Act 1959 appointed an Executive
Officer. Consequent thereto, the Commissioner HR&CE passed an
order dated 5.8.1987 defining the duties and powers of the Executive
Officer, so appointed for the administration of the Temple.
G.
Aggrieved, the respondent no.6 challenged the said order by
filing Writ Petition No.7843 of 1987. The High Court of Madras
granted stay of operation of the said order dated 5.8.1987. However,
the writ petition stood dismissed vide judgment and order dated
17.2.1997.
H.
Aggrieved, the respondent no.6 preferred Writ Appeal No.145
of 1997 and the High Court vide its judgment and order dated
5
Page 5
1.11.2004 disposed of the said writ appeal giving liberty to
respondent no.6 to file a revision petition before the Government
under Section 114 of the Act 1959 as the writ petition had been filed
without exhausting the statutory remedies available to the said
respondent.
I.
The revision petition was preferred, however, the same stood
dismissed vide order dated 9.5.2006 rejecting the contention of the
respondent no.6 that the order dated 5.8.1987 violated respondent’s
fundamental rights under Article 26 of the Constitution observing that
by virtue of the operation of law i.e. statutory provisions of Sections
45 and 107 of the Act 1959, such rights were not available to the
respondent no.6. In this order, the entire history of the litigation was
discussed and it was also pointed out that the Executive Officer had
taken charge of the Temple on 20.3.1997 and had been looking after
the management of the Temple since then. The said order also
revealed that the respondent no.6 could not furnish proper accounts of
movable and immovable properties of the Temple and recorded the
following finding of fact:
“The powers given to the Executive Officer, are the
administration of the Temple and its properties and
maintain these in a secular manner. Hence, the rights of
6
Page 6
the petitioners are not at all affected or interfered with, in
any manner whatsoever the aim and reason behind the
appointment of the Executive Officer is not for removing
the petitioners who call themselves as trustees to this
Temple.” (Emphasis added)
J.
The respondent no.6 preferred Writ Petition No.18248 of 2006
for setting aside the order dated 9.5.2006 which was dismissed by the
High Court vide judgment and order dated 2.2.2009 observing that the
judgment referred to hereinabove in Writ Petition (C) Nos. 379-380 of
1951 titled Marimuthu Dikshitar v. The State of Madras & Anr.,
reported in 1952 (1) MLJ 557, wherein it was held that Dikshitars
were a ‘religious denomination’, would not operate as res judicata.
K.
Aggrieved, the respondent no.6 filed Writ Appeal No.181 of
2009. The present appellant Dr. Subramanian Swamy was allowed by
the High Court to be impleaded as a party. The Writ Appeal has been
dismissed vide impugned judgment and order dated 15.9.2009.
Hence, these appeals.
3.
The appellant-in-person has submitted that Article 26 of the
Constitution confers certain fundamental rights upon the citizens and
particularly, on a ‘religious denomination’ which can neither be taken
7
Page 7
away nor abridged.
In the instant case, the Dikshitars had been
declared by this Court, in a lis between Dikshitars and the State and
the Religious Endowments Commissioner, that they were an
acknowledged `religious denomination’ and in that capacity they had
a right to administer the properties of the Temple. Though in view of
the provisions of Section 45 read with Section 107 of the Act 1959,
the State may have a power to regulate the activities of the Temple,
but lacks competence to divest the Dikshitars from their right to
manage and administer the Temple and its properties. It was
strenuously contended that the High Court committed an error by
holding that the earlier judgment of the Division Bench in
Marimuthu Dikshitar (Supra) would not operate as res judicata.
Therefore, the appeal deserves to be allowed.
4.
Per contra, Shri Dhruv Mehta and Shri Colin Gonsalves,
learned Senior counsel, and Shri Yogesh Kanna, learned counsel have
opposed the appeal contending that no interference is required by this
court as the High Court has rightly held that the aforesaid judgment of
the Madras High Court or the judgment of this Court in Shirur Mutt
case (Supra) would not operate as res judicata even if the earlier
8
Page 8
dispute had been contested between the same parties and touches
similar issues, for the reason that Article 26(d) applies only when the
temple/property is owned and established by the ‘religious
denomination’. In the instant case, the Temple is neither owned by
respondent No. 6, nor established by it. Thus, the appeal is liable to
be dismissed.
Shri Subramonium Prasad, learned Addl. Advocate General
appearing for the State and the Statutory authorities has opposed the
appeal contending that the Executive Officer has been appointed to
assist the Podhu Dikshitars and to work in collaboration with them
and the said respondent has not been divested of its powers at all, so
far as the religious matters are concerned. Thus, the matter should be
examined considering these aspects.
5.
We have considered the rival submissions made by learned
counsel for the parties and perused the record.
6.
Before entering into the merits of the case, it may be relevant to
refer to the relevant statutory provisions.
9
Page 9
Section 27 of the Act 1959 provides that the trustee would be
bound to obey all lawful orders issued by the Government or the
statutory authorities.
Section 45 of the Act 1959 provides for appointment and duties
of Executive Officer and relevant part thereof reads:
“(1) Notwithstanding anything contained in this Act, the
Commissioner may appoint, subject to such conditions as
may be prescribed, an Executive Officer for any religious
institution other than a Math or a specific endowment
attached to a Math.
(2) The Executive Officer shall exercise such powers and
discharge such duties as may be assigned to him by the
Commissioner.
Provided that only such powers and duties as appertain to
the administration of the properties of the religious
institutions referred to in sub-section (1) shall be
assigned to the executive officer.
xxx
xxx
xxx
xxx
On the other hand, Section 107 of the Act 1959 provides that
the Act would not affect the rights guaranteed under Article 26 of the
Constitution. It reads:
“Nothing contained in this Act shall, save as
otherwise provided in Section 106 and in Clause (2) of
Article 25 of the Constitution, be deemed to confer any
power or impose any duty in contravention of the rights
10
Page 10
conferred on any religious denomination or any Section
thereof by Article 26 of the Constitution.”
Section 116 of the Act 1959 reads as under:
“116. Power to make rules-
(1) The Government may, by notification, make rules
to carry out the purposes of this Act.
(2) Without prejudice to the generality of the
foregoing power, such rules may provide for-
(i)
all matters expressly required or allowed by
this Act to be prescribed;
xx
xx
xx
(3) All rules made and all notifications issued under
this Act shall, as soon as possible after they are made or
issued, be placed on the table of the Legislative
Assembly and shall be subject to such modifications by
way of amendment or repeal as the Legislative Assembly
may make either in the same session or in the next
session.”
7.
Article 26 of the Constitution provides for freedom to manage
religious affairs and it reads as under:
“26. Freedom to manage religious affairs - Subject to
public order, morality and health, every religious
denomination or any section thereof shall have the right –
(a) to establish and maintain institutions for religious
and charitable purposes;
(b) to manage its own affairs in matters of religion;
(c) to own and acquire movable and immovable
property; and
11
Page 11
(d) to administer such property in accordance with
law.”
(Emphasis added)
8.
The word “such” has to be understood in the context it has been
used. A Constitution Bench of this Court in Central Bank of India
v. Ravindra & Ors., AIR 2001 SC 3095 dealt with the word “such”
and held as under:
“43. Webster defines "such" as "having the particular
quality or character specified; certain, representing the
object as already particularised in terms which are not
mentioned. In New Webster's Dictionary and Thesaurus,
meaning of "such" is given as "of a kind previously or
about to be mentioned or implied; of the same quality as
something just mentioned (used to avoid the repetition of
one word twice in a sentence); of a degree or quantity
stated or implicit; the same as something just mentioned
(used to avoid repetition of one word twice in a
sentence); that part of something just stated or about to
be stated". Thus, generally speaking, the use of the word
"such" as an adjective prefixed to a noun is indicative of
the draftsman's intention that he is assigning the same
meaning or characteristic to the noun as has been
previously indicated or that he is referring to something
which has been said before. This principle has all the
more vigorous application when the two places
employing the same expression, at earlier place the
expression having been defined or characterised and at
the latter place having been qualified by use of the word
"such", are situated in close proximity.”
12
Page 12
(See also: Ombalika Das & Anr. v. Hulisa Shaw, AIR 2002 SC
1685).
9.
The aforesaid provisions make it clear that the rights of the
‘denominational religious institutions’ are to be preserved and
protected from any invasion by the State as guaranteed under Article
26 of the Constitution, and as statutorily embodied in Section 107 of
the Act 1959.
10.
Undoubtedly, the object and purpose of enacting Article 26 of
the Constitution is to protect the rights conferred therein on a
`religious denomination` or a section thereof. However, the rights
conferred under Article 26 are subject to public order, morality and
health and not subject to any other provision of Part III of the
Constitution as the limitation has been prescribed by the law makers
by virtue of Article 25 of the Constitution.
The term ‘religious denomination’ means collection of
individuals having a system of belief, a common organisation; and
designation of a distinct name. The right to administration of property
by a ‘religious denomination’ would stand on a different footing
13
Page 13
altogether from the right to maintain its own affairs in matters of
religion.
(Vide:
Acharya
Maharajshri
Narendra
Prasadji
Anandprasadji Maharaj etc.etc. v. The State of Gujarat & Ors.,
AIR 1974 SC 2098; T.M.A. Pai Foundation & Ors. v. State of
Karnataka & Ors., AIR 2003 SC 355; and Nallor Marthandam
Vellalar & Ors. v. Commissioner, Hindu Religious and Charitable
Endowments & Ors., AIR 2003 SC 4225).
11.
The Constitution Bench of this Court in S. Azeez Basha &
Anr. v. Union of India, AIR 1968 SC 662, while dealing with the
rights of minority to establish educational institutions, also dealt with
the provisions of Article 26 of the Constitution and observed that the
words “establish and maintain” contained in Article 26 (a) must be
read conjunctively. A ‘religious denomination’ can only claim to
maintain that institution which has been established by it. The right to
maintain institutions would necessarily include the right to administer
them. The right under Article 26(a) of the Constitution will only arise
where the institution is established by a ‘religious denomination’ and
only in that event, it can claim to maintain it. While dealing with the
issue of Aligarh Muslim University, this Court rejected the claim of
14
Page 14
Muslim community of the right to administer on the ground that it had
not been established by the Muslim community and, therefore, they
did not have a right to maintain the university within the meaning of
Article 26(a) of the Constitution.
12.
In Khajamian Wakf Estates etc. v. State of Madras etc.,
AIR 1971 SC 161, the Constitution Bench of this Court held that the
religious denomination can own, acquire properties and administer
them in accordance with law.
In case they lose the property or
alienate the same, the right to administer automatically lapses for the
reason that property ceases to be their property. Article 26(d) of the
Constitution protects the rights of ‘religious denomination’ to
establish and administer the properties as clauses (c) and (d) guarantee
a fundamental right to any religious denomination to own, acquire,
establish and maintain such properties.
13.
In Sri Sri Sri Lakshamana Yatendrulu & Ors. v. State of
A.P. & Anr., AIR 1996 SC 1414, this Court examined the
constitutional validity of some of the provisions of the Andhra
Pradesh Charitable and Hindu Religious Institutions and Endowments
15
Page 15
Act 1987. The Court also examined the object of the scheme framed
under Section 55 of the said Act and held as under:
“..That the power of the Commissioner to frame scheme
is not absolute but is conditioned upon reasonable belief
on the basis of the report submitted by the Deputy
Commissioner and there must be some material on
record for entertaining a reasonable belief that the
affairs of the Math and its properties are being
mismanaged or that funds are misappropriated or that
the mathadhipathi grossly neglected in performing his
duties. Prior enquiry in that behalf is duly made in
accordance with the rules prescribed thereunder. The
members of the committee so appointed shall be the
persons who are genuinely interested in the proper
management of the Math, management of the properties
and useful utilization of the funds for the purpose of
which the endowment is created. Thus, the paramount
consideration is only proper management of the Math
and utilisation of the funds for the purpose of the Math
as per its customs, usage etc.”
(Emphasis
added)
The Court further held:
“Such a scheme can be only to run day-to-day
management of the endowment and the committee would
be of supervisory mechanism as overall incharge of the
Math.”
(Emphasis added)
As the Act 1987 did not provide the duration for which the
scheme would remain in force, the court held that “the duration of the
scheme thus framed may also be specified either in the original
16
Page 16
scheme or one upheld with modification, if any, in appeal.” The Court
held:
“36. The object of Section 55 appears to be to remedy
mismanagement of the math or misutilisation of the
funds of the math or neglect in its management. The
scheme envisages modification or its cancellation
thereof, which would indicate that the scheme is of a
temporary nature and duration till the evil, which was
recorded by the Commissioner after due enquiry, is
remedied or a fit person is nominated as mathadhipathi
and is recognised by the Commissioner. The scheme is
required to be cancelled as soon as the nominated
mathadhipathi assumes office and starts administering
the math and manages the properties belonging to,
endowed or attached to the math or specific
endowment.”
(Emphasis added)
Thus, this Court clarified that there cannot be super-session of
administration in perpetuity. It is a temporary measure till the evil gets
remedied.
14.
In the aforesaid backdrop, we shall examine the present
appeals.
The learned Single Judge while deciding Writ Petition No.
18248/2006 examined the case raising the following question:
“Observations of the Division Bench in 1952 (1) MLJ
557 that Podhu Dikshitars are a ‘denomination’ are to be
17
Page 17
tested in the light of well-settled principles laid down in
various decisions of the Supreme Court.”
The learned Single Judge as well as the Division Bench made it
a pivotal point while dealing with the case.
15.
The Constitution Bench of this Court in Shirur Mutt (Supra)
categorically held that a law which takes away the right to administer
the religious denomination altogether and vests it in any other
authority would amount to a violation of right guaranteed in clause (d)
of Article 26 of the Constitution. Therefore, the law could not divest
the administration of religious institution or endowment. However, the
State may have a general right to regulate the right of administration
of a religious or charitable institution or endowment and by such a
law, State may also choose to impose such restrictions whereof as are
felt most acute and provide a remedy therefore. (See also: Ratilal
Panachand Gandhi & Ors. v. State of Bombay & Ors., AIR 1954
SC 388; and Pannalal Bansilal Pitti & Ors. v. State of A.P. & Anr.,
AIR 1996 SC 1023).
16.
The Shirur Mutt case (Supra) had been heard by the Division
Bench of the Madras High Court alongwith Marimuthu Dikshitar
18
Page 18
(Supra), and against both the judgments appeals were preferred before
this court. However, in the case of respondent no.6, the appeal was
dismissed as the State of Madras had withdrawn the impugned
notification, while in Shirur Mutt case the judgment came to be
delivered wherein this Court held as under:
“15. As regards Art. 26. the first question is, what is the
precise meaning or connotation of the expression
"religious denomination" and whether a Math could
come within this expression. The word "denomination"
has been defined in the Oxford Dictionary to mean "a
collection of individuals classed together under the same
name : a religious sect or body having a common faith
and organisation and designated by a distinctive name".
It is well known that the practice of setting up Maths as
centres of theological teaching was started by Shri
Sankaracharya and was followed by various teachers
since then. After Sankara came a galaxy of religious
teachers and philosophers who founded the different
sects and sub sects of the Hindu religion that we find in
India at the present day.
Each one of such sects or sub-sects can certainly
be called a religious denomination, as it is designated by
a distinctive name, --in many cases it the name of the
founder --- and has a common faith and common
spiritual organization. The followers of Ramanuja, who
are known by the name of Shri Vaishnabas, undoubtedly
constitute a religious denomination; and so do the
followers of Madhwacharya and other religious
teachers. It is a fact well established by tradition that the
Udipi Maths were founded by Madhwacharya himself
and the trustees and the beneficiaries of these Maths
profess to be followers of that teacher. The High Court
has found that the Math in question is in charge of the
Sivalli Brahmins who constitute a Section of the
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Page 19
followers of Madhwacharya.As Art. 26 contemplates not
merely a religious denomination but also a Section
thereof, the Math or the spiritual fraternity represented
by it can legitimately come within the purview of this
Article.
16. The other thing that remains to be considered in
regard to Art. 26 is, what, is the scope of clause (b) of
the Article which speaks of management 'of its own
affairs in matters of religion?" The language
undoubtedly suggests that there could be other affairs of
a religious denomination or a Section thereof which are
not matter of religion and to which the guarantee given
by this clause would not apply. The question is, where is
the line to be drawn between what are matters of religion
and what are not?
xx
xx
xx
22. Under Art. 26(b), therefore a religious
denomination or organization enjoys complete autonomy
in the matter of deciding as to what rites and ceremonies
are essential according to the tenets of the religion they
hold and no outside authority has any jurisdiction to
interfere with their decision in such matters.”
This Court upheld the validity of Section 58 of the Act 1951
which had been struck down by the Division Bench which is
analogous to Section 64 of the Act 1959.
17.
In view of the provisions of Sections 44 and 45(2) of the Act
1959, the State Government can regulate the secular activities without
interfering with the religious activities.
20
Page 20
18.
The issues involved herein are as to whether Dikshitars
constitute a ‘religious denomination’ and whether they have a right to
participate in the administration of the Temple. In fact, both the
issues stood finally determined by the High Court in the earlier
judgment of Marimuthu Dikhsitars (Supra) referred to hereinabove
and, thus, doctrine of res judicata is applicable in full force.
19.
The Division Bench of Madras High Court while deciding the
dispute earlier in Marimuthu Dikshitar (Supra), traced the history of
Dikshitars and examined their rights, etc. The Court concluded:
“Looking at it from the point of view, whether the Podu
Dikshitars are a denomination, and whether their right
as a denomination is to any extent infringed within the
meaning of Article 26, it seems to us that it is a clear
case, in which it can safely be said that the Podu
Dikshitars who are Smartha Brahmins, form and
constitute a religious denomination or in any event, a
section thereof. They are even a closed body, because
no other Smartha Brahmin who is not a Dikshitar is
entitled to participate in the administration or in the
worship or in the services to God. It is their exclusive
and sole privilege which has been recognized and
established for over several centuries.
In the case of Sri
Chidambaram, with which
petition, it should be clear
earlier in this judgment,
Sabhanayakar Temple at
we are concerned in this
from what we have stated
that the position of the
21
Page 21
Dikshitars, labelled trustees of this Temple, is virtually
analogous to that of a Matathipathi of a Mutt, except
that the Podu Dikshitars of this Temple, functioning as
trustees, will not have the same dominion over the
income of the properties of the Temple which the
Matathipathi enjoys in relation to the income from the
Mutt and its properties. Therefore, the sections which
we held ultra vires in relation to Mutts and
Matathipathis will also be ultra vires the State
Legislature in relation to Sri Sabhanayakar Temple,
Chidambaram and the Podu Dikshitars who have the
right to administer the affairs and the properties of the
Temple. As we have already pointed out even more than
the case of the Shivalli Brahmins, it can be asserted that
the Dikshitars of Chidambaram form a religious
denomination within the meaning of Article 26 of the
Constitution.
We certify under Article 132 of the Constitution that it is
a fit case for appeal to the Supreme Court. Notification
quashed.”
(Emphasis added)
20.
On the basis of the certificate of fitness, the State of Madras
preferred Civil Appeal No.39 of 1953 before this Court against the
said judgment and order of the Madras High Court, which was heard
by the Constitution Bench of this Court on 9.2.1954. However, the
said appeal stood dismissed as the State withdrew the notification
impugned therein. Relevant part of the order runs as under :
“The Appeal and the Civil Miscellaneous Petition above
mentioned being called on for hearing before this Court
on the 9th day of February, 1954 upon hearing the
Advocate-General of Madras on behalf of the Appellants
22
Page 22
and counsel for the respondents and upon the said
advocate-General appearing on behalf of the State of
Madras agreeing to withdraw the notification G.O. Ms.
No.894 Rural Welfare dated 28.8.1951 published in Fort
St. George Gazette dated 4.9.1951 in the matter of the
Sabhanayagar Temple, Chidambaram, Chidambaram
Taluk, South Arcot District/the Temple concerned in this
appeal/this Court doth order that the appeal and the civil
miscellaneous petition above mentioned be and the same
are hereby dismissed.”
21.
It is evident from the judgment of the High Court of Madras,
which attained finality as the State withdrew the notification, that the
Court recognised:
a)
That Dikshitars, who are Smarthi Brahmins, form and
constitute a ‘religious denomination’;
b)
Dikshitars are entitled to participate in administration of the
Temple; and
c)
It was their exclusive privilege which had been recognised and
established for over several centuries.
22.
It is not a case to examine whether in the facts and
circumstances of the case, the judgments of this court in various cases
are required to be followed or the ratio thereof is binding in view of
the provisions of Article 141 of the Constitution. Rather the sole
23
Page 23
question is whether an issue in a case between the same parties, which
had been finally determined could be negated relying upon
interpretation of law given subsequently in some other cases, and the
answer is in the negative. More so, nobody can claim that the
fundamental rights can be waived by the person concerned or can be
taken away by the State under the garb of regulating certain activities.
23.
The scope of application of doctrine of res judicata is in
question.
The literal meaning of “res” is “everything that may form an
object of rights and includes an object, subject-matter or status” and
“res judicata” literally means “a matter adjudged a thing judicially
acted upon or decided; a thing or matter settled by judgments”. “Res
judicata pro veritate accipitur” is the full maxim which has, over the
years, shrunk to mere “res judicata”, which means that res judicata is
accepted for truth.
24.
The doctrine contains the rule of conclusiveness of the
judgment which is based partly on the maxim of Roman jurisprudence
“interest reipublicae ut sit finis litium” (it concerns the State that there
24
Page 24
be an end to law suits) and partly on the maxim “nemo debet bis
vexari pro uno et eadem causa” (no man should be vexed twice over
for the same cause).
Even an erroneous decision on a question of law attracts the
doctrine of res judicata between the parties to it. The correctness or
otherwise of a judicial decision has no bearing upon the question
whether or not it operates as res judicata. (Vide: Shah Shivraj
Gopalji v. ED-, Appakadh Ayiassa Bi & Ors., AIR 1949 PC 302;
and Mohanlal Goenka v. Benoy Kishna Mukherjee & Ors., AIR
1953 SC 65).
25.
In Smt. Raj Lakshmi Dasi & Ors. v. Banamali Sen & Ors.,
AIR 1953 SC 33, this Court while dealing with the doctrine of res
judicata referred to and relied upon the judgment in Sheoparsan
Singh v. Ramnandan Singh, AIR 1916 PC 78 wherein it had been
observed as under:
“........ the rule of res judicata, while founded on ancient
precedents, is dictated by a wisdom which is for all
time..... Though the rule of the Code may be traced to
an English source, it embodies a doctrine in no way
opposed to the spirit of the law as expounded by the
Hindu commentators. Vijnanesvara and Nilakantha
25
Page 25
include the plea of a former judgment among those
allowed by law, each citing for this purpose the text of
Katyayana, who describes the plea thus: 'If a person
though defeated at law, sue again, he should be
answered, ‘‘you were defeated formerly". This is called
the plea of former judgment.’... And so the application of
the rule by the courts in India should be influenced by no
technical considerations of form, but by matter of
substance within the limits allowed by law’’
26.
This Court in Satyadhyan Ghosal & Ors. v. Smt. Deorajin
Debi & Anr., AIR 1960 SC 941 explained the scope of principle of
res-judicata observing as under:
“7. The principle of res judicata is based on the need of
giving a finality to judicial decisions. What it says is that
once a res is judicata, it shall not be adjudged again.
Primarily it applies as between past litigation and future
litigation, When a matter - whether on a question of fact
or a question of law - has been decided between two
parties in one suit or proceeding and the decision is
final, either because no appeal was taken to a higher
court or because the appeal was dismissed, or no appeal
lies, neither party will be allowed in a future suit or
proceeding between the same parties to canvass the
matter again. This principle of res judicata is embodied
in relation to suits in S. 11 of the Code of Civil
Procedure; but even where S. 11 does not apply, the
principle of res judicata has been applied by courts for
the purpose of achieving finality in litigation. The result
of this is that the original court as well as any higher
court must in any future litigation proceed on the basis
that the previous decision was correct.”
A similar view has been re-iterated by this court in Daryao &
Ors. v. The State of U.P. & Ors., AIR 1961 SC 1457; Greater
Cochin Development Authority v. Leelamma Valson & Ors., AIR
2002 SC 952; and Bhanu Kumar Jain v. Archana Kumar & Anr.,
AIR 2005 SC 626.
27.
The Constitution Bench of this Court in Amalgamated
Coalfields Ltd. & Anr. v. Janapada Sabha Chhindwara & Ors.,
AIR 1964 SC 1013, considered the issue of res judicata applicable in
writ jurisdiction and held as under:
“...Therefore, there can be no doubt that the general
principle of res judicata applies to writ petitions filed
under Article 32 or Article 226. It is necessary to
emphasise that the application of the doctrine of res
judicata to the petitions filed under Art. 32 does not in
any way impair or affect the content of the fundamental
rights guaranteed to the citizens of India. It only seeks to
regulate the manner in which the said rights could be
successfully asserted and vindicated in courts of law.”
28.
In Hope Plantations Ltd. v. Taluk Land Board, Peermade
& Anr., (1999) 5 SCC 590, this Court has explained the scope of
finality of the judgment of this Court observing as under:
“One important consideration of public policy is that
the decision pronounced by courts of competent
jurisdiction should be final, unless they are modified or
reversed by the appellate authority and other principle
that no one should be made to face the same kind of
litigation twice ever because such a procedure should be
contrary to consideration of fair play and justice. Rule of
res judicata prevents the parties to a judicial
determination from litigating the same question over
again even though the determination may even be
demonstratedly wrong. When the proceedings have
attained finality, parties are bound by the judgment and
are estopped from questioning it.”
(See also: Burn & Co., Calcutta v. Their Employees, AIR 1957 SC
38; G.K. Dudani & Ors. v. S.D. Sharma & Ors., AIR 1986 SC
1455; and Ashok Kumar Srivastav v. National Insurance Co. Ltd.
& Ors., AIR 1998 SC 2046).
29.
A three-Judge Bench of this court in The State of Punjab v.
Bua Das Kaushal, AIR 1971 SC 1676 considered the issue and came
to the conclusion that if necessary facts were present in the mind of
the parties and had gone into by the court, in such a fact-situation,
absence of specific plea in written statement and framing of specific
issue of res judicata by the court is immaterial.
30.
A similar view has been re-iterated by this court in Union of
India v. Nanak Singh, AIR 1968 SC 1370 observing as under:
“This Court in Gulabchand Chhotalal v. State of
Gujarat, AIR 1965 SC 1153 observed that the provisions
of Section 11 of the Code of Civil Procedure are not
exhaustive with respect to all earlier decision operating
as res judicata between the same parties on the same
matter in controversy in a subsequent regular suit, and
on the general principle of res judicata, any previous
decision on a matter in controversy, decided after full
contest or after affording fair opportunity to the parties
to prove their case by a Court competent to decide it,
will operate as res judicata in a subsequent regular suit.
It is not necessary that the Court deciding the matter
formerly be competent to decide the subsequent suit or
that the former proceeding and the subsequent suit have
the same subject-matter. There is no good reason to
preclude, such decisions on matters in controversy in
writ proceedings under Article 226 or Article 32 of the
Constitution from operating as res judicata in
subsequent regular suits on the same matters in
controversy between the same parties and thus to give
limited effect to the principle of the finality of decisions
after full contest.”
31.
It is a settled legal proposition that the ratio of any decision
must be understood in the background of the facts of that case and the
case is only an authority for what it actually decides, and not what
logically follows from it. “The court should not place reliance on
decisions without discussing as to how the factual situation fits in with
the fact-situation of the decision on which reliance is placed.”
32.
Even otherwise, a different view on the interpretation of the law
may be possible but the same should not be accepted in case it has the
effect of unsettling transactions which had been entered into on the
basis of those decisions, as reopening past and closed transactions or
settled titles all over would stand jeopardized and this would create a
chaotic situation which may bring instability in the society.
The declaration that “Dikshitars are religious denomination or
section thereof” is in fact a declaration of their status and making such
declaration is in fact a judgment in rem.
33.
In Madan Mohan Pathak & Anr. v. Union of India & Ors.,
AIR 1978 SC 803, a seven-Judge Bench of this Court dealt with a
case wherein the question arose as to whether the order passed by the
Calcutta High Court issuing writ of mandamus directing the Life
Insurance Corporation of India (hereinafter referred to as L.I.C.) to
pay cash bonus for the year 1975-76 to its class 3 and 4 employees in
terms of the settlement between the parties was allowed to become
final.
Immediately after the pronouncement of the judgment, the
Parliament enacted the LIC (Modification of Settlement) Act, 1976.
The appeal filed against the judgment of Calcutta High Court was not
30
Page 30
pressed by LIC and the said judgment was allowed to become final.
This Court rejected the contention of the LIC that in view of the
intervention of legislation, it was not liable to meet the liability under
the said judgment. The Court held that there was nothing in the Act
which nullifies the effect of the said judgment or which could set at
naught the judgment or take away the binding character of the said
judgment against LIC. Thus, the LIC was liable to make the payment
in accordance with the said judgment and it could not be absolved
from the obligation imposed by the said judgment.
34.
This Court, while considering the binding effect of the
judgment of this Court, in State of Gujarat & Anr. v. Mr. Justice
R.A. Mehta (Retd.) & Ors., AIR 2013 SC 693, held:
“There can be no dispute with respect to the settled
legal proposition that a judgment of this Court is
binding,.....It is also correct to state that, even if a
particular issue has not been agitated earlier, or a
particular argument was advanced, but was not
considered, the said judgment does not lose its binding
effect, provided that the point with reference to which an
argument is subsequently advanced, has actually been
decided. The decision therefore, would not lose its
authority, "merely because it was badly argued,
inadequately considered or fallaciously reasoned".
(Vide: Smt. Somavanti & Ors. v. The State of Punjab &
Ors., AIR 1963 SC 151; Ballabhdas Mathuradas
31
Page 31
Lakhani & Ors. v.
AIR 1970 SC 1002;
U.P. & Ors., AIR
Settlements, A.P. &
2002 SC 1598).”
35.
Municipal Committee, Malkapur,
Ambika Prasad Mishra v. State of
1980 SC 1762; and Director of
Ors. v. M.R. Apparao & Anr., AIR
The issue can be examined from another angle. Explanation to
Order XLVII, Rule 1 of Code of Civil Procedure, 1908 (hereinafter
referred to as the ‘CPC’) provides that if the decision on a question of
law on which the judgment of the court is based, is reversed or
modified by the subsequent decision of a superior court in any other
case, it shall not be a ground for the review of such judgment. Thus,
even an erroneous decision cannot be a ground for the court to
undertake review, as the first and foremost requirement of entertaining
a review petition is that the order, review of which is sought, suffers
from any error apparent on the face of the order and in absence of any
such error, finality attached to the judgment/order cannot be
disturbed. (Vide: Rajendra Kumar & Ors. v. Rambhai & Ors.,
AIR 2003 SC 2095).
36.
In view of the fact that the rights of the respondent no. 6 to
administer the Temple had already been finally determined by the
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Page 32
High Court in 1951 and attained finality as State of Madras (as it then
was) had withdrawn the notification in the appeal before this Court,
we are of the considered opinion that the State authorities under the
Act 1959 could not pass any order denying those rights. Admittedly,
the Act 1959 had been enacted after pronouncement of the said
judgment but there is nothing in the Act taking away the rights of the
respondent no. 6, declared by the court, in the Temple or in the
administration thereof.
37.
The fundamental rights as protected under Article 26 of the
Constitution are already indicated for observance in Section 107 of the
Act 1959 itself. Such rights cannot be treated to have been waived nor
its protection denied. Consequently, the power to supersede
the
functions of a `religious denomination` is to be read as regulatory for
a certain purpose and for a limited duration, and not an authority to
virtually abrogate the rights of administration conferred on it.
In such a fact-situation, it was not permissible for the
authorities to pass any order divesting the said respondent from
administration of the Temple and thus, all orders passed in this regard
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Page 33
are liable to be held inconsequential and unenforceable. More so, the
judgments relied upon by the respondents are distinguishable on facts.
38.
Thus, in view of the above, it was not permissible for the High
Court to assume that it had jurisdiction to sit in appeal against its
earlier judgment of 1951 which had attained finality. Even otherwise,
the High Court has committed an error in holding that the said
judgment in Marimuthu Dikshitar (Supra) would not operate as res
judicata. Even if the Temple was neither established, nor owned by
the said respondent, nor such a claim has ever been made by the
Dikshitars, once the High Court in earlier judgment has recognised
that they constituted `religious denomination’ or section thereof and
had right to administer the Temple since they had been administering
it for several centuries, the question of re-examination of any issue in
this regard could not arise.
39.
Relevant features of the order passed by the Commissioner are
that the Executive Officer shall be incharge of all immovable
properties of the institution; the Executive Officer shall be entitled to
the custody of all immovables, livestock and grains; the Executive
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Page 34
Officer shall be entitled to receive all the income in cash and kind and
all offerings; all such income and offerings shall be in his custody; all
the office holders and servants shall work under the immediate control
and superintendence of the Executive Officer, though subject to the
disciplinary control of the Secretary of the respondent no.6., etc.
40.
Section 116 of the Act 1959 enables the State Government to
frame rules to carry out the purpose of the Act for “all matters
expressly required or allowed by this Act to be prescribed”. Clause 3
thereof requires approval of the rules by the House of State
Legislature. The Executive Officer so appointed by the Commissioner
has to function as per assigned duties and to the extent the
Commissioner directs him to perform.
41.
It is submitted by Dr. Swamy that rules have to be framed
defining the circumstances under which the powers under Section 45
of the Act 1959 can be exercised. The Act 1959 does not contemplate
unguided or unbridled functioning. On the contrary, the prescription
of rules to be framed by the State Government under Sections 116
read with Sections 45 and 65, etc. of the Act 1959 indicates that the
legislature only intended to regulate and control any incidence of
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Page 35
maladministration and not a complete replacement by introducing a
Statutory authority to administer the Temple.
42.
Section 2(16) CPC defines the term `prescribed` as prescribed
by rules. Further, Section 2(18) CPC defines rules as Rules and forms
as contained in the First Schedule or made under Section 122 or
Section 125 CPC. Sections 122 and 125 CPC provide for power of the
High Court to make rules with respect to its own functioning and
procedure. Therefore, it appears that when the legislature uses the
term `prescribed`, it only refers to a power that has simultaneously
been provided for or is deemed to have been provided and not
otherwise. Similarly, Section 2(n) of the Consumer Protection Act,
1986 defines prescribed as “prescribed by rules made by the State
Government or as the case may be, by the Central Government under
the Act”.
43.
Section 45 of the Act 1959 provides for appointment of an
Executive Officer, subject to such conditions as may be prescribed.
The term ‘prescribed’ has not been defined under the Act. Prescribed
means prescribed by rules. If the word ‘prescribed’ has not been
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Page 36
defined specifically, the same would mean to be prescribed in
accordance with law and not otherwise. Therefore, a particular power
can be exercised only if a specific enacting law or statutory rules have
been framed for that purpose. (See: Manohar Lal Chopra v. Rai
Bahadur Rao Raja Seth Hiralal, AIR 1962 SC 527; Hindustan
Ideal Insurance Co. Ltd. v. Life Insurance Corporation of India,
AIR 1963 SC 1083; Maharashtra SRTC v. Babu Goverdhan
Regular Motor Service Warora & Ors., AIR 1970 SC 1926; and
Bharat Sanchar Nigam Ltd. & Anr. v. BPL Mobile Cellular Ltd.
& Ors., (2008) 13 SCC 597).
44.
Shri Subramonium Prasad, learned AAG, has brought the
judgment in M.E. Subramani & Ors. v. Commissioner, HR&CE &
Ors., AIR 1976 Mad 264, to our notice, wherein the Madras High
Court while dealing with these provisions held that the Commissioner
can appoint an Executive Officer under Section 45 even if no
conditions have been prescribed in this regard. It may not be possible
to approve this view in view of the judgments of this Court referred to
in para 41 supra, thus, an Executive Officer could not have been
37
Page 37
appointed in the absence of any rules prescribing conditions subject to
which such appointment could have been made.
45.
However, Shri Subramonium Prasad, learned AAG, has
submitted that so far as the validity of Section 45 of the Act 1959 is
concerned, it is under challenge in Writ Petition (C) No. 544 of 2009
and the said petition had earlier been tagged with these appeals, but it
has been de-linked and is to be beard after the judgment in these
appeals is delivered. Thus, in view of the stand taken by the State
before this court, going into the issue of validity of Section 45 of the
Act 1959 does not arise and in that respect it has been submitted in
written submissions as under:
(a)
The scheme of administration in Board’s Order
No.997 dated 8.5.1933 under the Act 1927 contained
various provisions inter-alia that active management
would rest in the committee consisting of nine members
who were to be elected from among the Podhu Dikshitars
(clause 4);
(b)
At the time of issuing the order of appointment of
Executive Officer, the Podhu Dikshitars were given full
opportunity of hearing and the powers and duties of the
Executive Officer as defined by the Commissioner would
show that the religious affairs have not been touched at
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Page 38
all and the trustees and the Executive Officers are jointly
managing the temple. The Podhu Dikshitars have not
been divested of the properties and it was not the
intention of the State Government to remove the trustees
altogether, rather the Executive Officers function
alongwith the trustees;
(c)
In any event, the Podhu Dikshitars are trustees in
the temple and they have not been divested of their
properties. The Executive Officer is only collaborating
with the trustees in administering the properties. Their
religious activities have not been touched. Neither the
powers of the trustees have been suspended nor the
Executive Officers have been vested with their powers
and the Executive Officers only assist the trustees in
management of the temple. It was not the intention to
remove the trustees altogether, nor the order of
appointment of the Executive Officer suspends the
scheme already framed way back in 1939.
46.
Be that as it may, the case is required to be considered in light
of the submissions made on behalf of the State of Tamil Nadu and
particularly in view of the written submissions filed on behalf of the
State.
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Page 39
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
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Page 40
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:
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Page 41
“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
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Page 42
operation is prescribed, is not sustainable being ex facie arbitrary,
illegal and unjust.
50.
Thus, the appeals are allowed. Judgments/orders impugned are
set aside. There shall be no order as to costs.
.............................................J.
(DR. B.S. CHAUHAN)
.........................................J.
(S.A. BOBDE)
New Delhi,
January 6, 2014
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