Supreme Court of India
DR. SUBRAMANIAN SWAMYversusSTATE OF TAMIL NADU & ORS.
- Citation
- 2014 INSC 902
- Decided
- 6 January 2014
- Disposal
- Appeal(s) allowed
- Bench
- B S CHAUHAN
Holding
The Supreme Court held that the earlier judgment declaring the Podhu Dikshitars a religious denomination with a constitutional right to administer the temple is binding under res judicata, and any State action, including appointment of an Executive Officer, that divests that right without prescribed rules and for a limited period is invalid.
Summary
The case concerned the administration of the Sri Sabhanayagar Temple at Chidambaram, claimed by the Podhu Dikshitars, a Smarthi Brahmin community, as their religious denomination. The High Court had earlier dismissed the State's order appointing an Executive Officer under the Madras Hindu Religious and Charitable Endowments Act, 1959, holding that the Dikshitars' right to manage the temple was protected by Art. 26 of the Constitution and that the earlier 1951 judgment in Marimuthu Dikshitar, which declared them a religious denomination, was res judicata. The State argued that the later statute and its regulatory powers could override that right. The Supreme Court affirmed that the 1951 judgment was final, that Art. 26(d) guarantees the denomination’s right to administer its property, and that Section 107 of the 1959 Act cannot abrogate those rights. It further held that the appointment of an Executive Officer without prescribed rules and for an indefinite period was ultra‑vires. Consequently, the impugned orders were set aside.
Issues considered
- The status of the Podhu Dikshitars as a 'religious denomination' under Art. 26 of the Constitution
- Whether the 1951 judgment in Marimuthu Dikshitar operates as res judicata in the present proceedings
- Whether Section 107 of the Madras Hindu Religious and Charitable Endowments Act, 1959 can override the constitutional rights of a religious denomination
- Whether the State may appoint an Executive Officer without prescribed rules and for an indefinite period
Legislation cited
- Code of Civil Procedure, 1908s. Rule 1 of Order XLVII, s. s.47
- Constitution of Indias. Art. 26
- Consumer Protection Act, 1986s. s.2(n)
- Madras Hindu Religious and Charitable Endowments Act, 1951
- Madras Hindu Religious and Charitable Endowments Act, 1959s. s.107, s. s.116, s. s.44, s. s.45, s. s.45(2)
Subjects
religious denominationArticle 26res judicatatemple administrationMadras Hindu Religious and Charitable Endowments Actexecutive officerfundamental rightsHindu religious endowmentsregulation vs supersession
Judgment
[2014] 1 S.C.R. 308
A DR. SUBRAMANIAN SWAMY
v.
STATE OF TAMIL NADU & ORS.
(Civil Appeal No. 10620 of 2013)
JANUARY 6, 2014
B
[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,
acquire, establish and maintain such properties - Rights of
0
'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 E
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 F
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 G
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
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
common organisation; and designation of a distinct
8
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]
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.
G
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.
H
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]
F
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.,
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 F
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 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 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
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]
G 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 para 2 c
2001 (4) Su~pJ SCR 323 referred to para 8
2002 (2) SCR 902 referred to Para 8
1975 (2) SCR 317 relied on para 10
D
2002 (3) Suppl. SCR 587 relied on para 10
2003 (1) Suppl. SCR 920 relied on para 10
1968 SCR 833 relied on para 11
E
1971 (2) SCR 790 relied on pa;a 12
1996 (1) SCR 929 referred to para 13
1954 SCR 1035 referred to para 15
1996 (1) SCR 603 referred to para 15 F
AIR 1949 PC 302 referred to para 24
1953 SCR 377 referred to para 24
1953 SCR 154 referred to para 25 G
AIR 1916 PC 78 referred to para 25
1960 SCR 590 referred to para 26
1962 SCR 574 referred to 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
1998 (2) Suppl. SCR 514 referred to para 28
B
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
AIR 1976 Mad 264 disapproved Para 44
F
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 SUPREME COURT REPORTS [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
the appeal are as under:
0
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
324 SUPREME COURT REPORTS [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.
B
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
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.
4. Per contra, Shri Dhruv Mehta and Shri Colin Gonsalves,
F
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.
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.
E 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
F
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
G 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
H to the executive officer.
DR. SUBRAMANIAN SWAMY v. STATE OF TAMIL 327
NADU [DR. B. S. CHAUHAN, J.]
xxx xxx xxx xxx A.
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 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 -
(a) to establish and maintain institutions for
religious and charitable purposes;
(b) to manage its own affairs in matters of religion;
B
(c) to own and acquire movable and immovable
property; and
(d) to administer such property in accordance with
law."
c
(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:
"43. Webster defines "such" as "having the particular
quality or character specified; certain, representing the
object as already particularised in terms which are not
E 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
F 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
G 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
H 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). B
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. 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 SUPREME COURT REPORTS [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. 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.
F
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
G Endowments Act 1987. The Court also examined the object of
the scheme framed under Section 55 of the said Act and held
as under:
".. That the power of the Commissioner to frame
scheme is not absolute but is conditioned upon
H reasonable belief on the basis of the report submitted by
DR. SUBRAMANIAN SWAMY v. STATE OF TAMIL 331
,
NADU [DR. B. S. CHAUHAN, J.]
the Deputy Commissioner and there must be some A
material on record for entertaining a reasonable t,elief
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 B
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 c
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: D
"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) E
As the Act 1987 did not provide the duration for which the
scheme would remain in force, the court held that "the duration
of the scheme thus framed may also be specified either in the
original scheme or one upheld with modification, if any, in
appeal." The Court held: F
"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 G
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 H
332 SUPREME COURT REPORTS [2014] 1 S.C.R.
A 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)
B
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
C 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
D
that Podhu Dikshitars are a 'denomination' are to be
tested in the light of well-settled principles laid down in
various decisions of the Supreme Court."
The learned Single Judge as well as the Division Bench
E 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
F 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
G 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:
Rat1/al 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).
H
DR. SUBRAMANIAN SWAMY v. STATE OF TAMIL 333
NADU [DR. B. S. CHAUHAN, J.]
16. The Shirur Mutt case (Supra) had been heard by the A
Division Bench of the Madras High Court alongwith Marimuthu
Dikshitar (Supra), and against both the judgments appeals
were preferred before this court. However, in the case of
respondent no.6, the appeal was dismissed as the State of
Madras had withdrawn the impugned notification, while in Shirur B
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 C
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 D
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 E
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 F
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. G
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 Siva/Ii H
334 SUPREME COURT REPORTS [2014] 1 S.C.R.
A Brahmins who constitute a Section of the followers of
Madhwacharya.As Art. 26 contemplates not merely a
religious denomination but also a Section thereof, the
Math or the spiritual fraternity represented by it can
legitimately come within the purview of this Article.
B
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
c 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?
D
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
E
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
F 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
G activities without interfering with the religious activities.
18. The issues involved herein are as to whether Dikshitars
constitute a 'religious denomination' and whether they have a
right to participate in the administration of the Temple. In fact,
both the issues stood finally determined by the High Court in
H the earlier judgment of Marimuthu Dikhsitars (Supra) referred
DR. SUBRAMANIAN SWAMY v. STATE OF TAMIL 335
NADU [DR. B. S. CHAUHAN, J.]
to hereinaboveJand, thus, doctrine of res judicata is applicable A
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. B
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 C
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 D
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.
E
In the case of Sri Sabhanayakar Temple at
Chidambaram, with which we are concerned in this
petition, it should be clear from what we have stated
earlier in this judgment, that the position of the Dikshitars,
labelled trustees of this Temple, is virtually analogous to F
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 G
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 H
336 SUPREME COURT REPORTS [2014] 1 S.C.R.
A pointed out even more than the· case of the Shiva/Ii
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
B
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.39of1953 before this Court
C 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 :
0
"The Appeal and the Civil Miscellaneous Petition above
mentioned being called on for hearing before this Court
on the 9th day of February, 1954 upon hearing the
Advocate-General of Madras on behalf of the Appellants
and counsel for the respondents and upon the said
E
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
F 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."
G 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';
H
DR. SUBRAMANIAN SWAMY v. STATE OF TAMIL 337
NADU [DR. B. S. CHAUHAN,J.]
(b) Dikshitars are entitled to participate in A
administration of the Temple; and
(c) It was their exclusive privilege which had been
recognised and established for over several
centuries. B
22. It is not a case to examine whether in tne facts and
circumstances of the case, the judgments of this court in various
cases are required to be followed or the ratio thereof is binding
in view of the provisions of Article 141 of the Constitution.
Rather the sole question is whether an issue in a case between C
the same parties, which had been finally determined could be
negated relying upon rnterpretation 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 D
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 E
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 rnere "res judicata", F
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 G
the State that there be an end to law suits) and partly on the
maxim "nemo debet bis vexari pro uno et eadem causa" (no
man should be vexed twice over for the same cause).
Even an erroneous decision on a question of law attracts
the doctrine of res judicata between the parties to it. 1:he H
338 SUPREME COURT REPORTS [2014] 1 S.C.R.
A 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 Mohan/al Goenka v. Benoy
Kishna Mukherjee & Ors., AIR 1953 SC 65).
B •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:
c
" ........ 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
D opposed to the spirit of the law as expounded by the
Hindu commentators. Vijnanesvara and Nilakantha
include the plea of a former judgment among those
allowed by law, each citing for this purpose the text of
Katyayana, who describes the plea thus: 'If a person
E 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
F substance within the limits allowed by law"
26. This Cou11 in Satyadhyan Ghosa/ & Ors. v. Smt.
Deorajin Debi & Anr., AIR 1960 SC 941 explained the scope
of principle of res-judicata observing as under:
G ?. 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
H or a question of law - has been decided between two
DR. SUBRAMANIAN SWAMY v. STATE OF TAMIL 339
NADU [DR. B. S. CHAUHAN, J.]
parties in one suit or proceeding and the decision is final, A
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 B
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 c
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 Va/son & Ors., D
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., E
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 F
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 G
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 H
under:
340 SUPREME COURT REPORTS [2014] 1 S C.R
A "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
B 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.
c When the proceedings have attained finality, parties are
bound by the judgment and are estopped from
questioning it."
(See also: Bum & Co., Calcutta v. Their Employees, AIR 1957
SC 38; G.K. Dudani & Ors. v. S.D. Sharma & Ors., AIR 1986
D 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
E 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.
F
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,
G 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
H on the general principle of res judicata, any previous
DR. SUBRAMANIAN SWAMY v. STATE OF TAMIL 341
NADU [DR. B. S. CHAUHAN,J.]
decision on a matter in controversy, decided after full A
contest or a~er affording fair opportunity to the parties to
prove their case by a Court competent to decid~ 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 B
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 c
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 D
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." E
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
Nhich had been entered into on the basis of those decisions, F
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 soc:;iety.
The declaration that "Dikshitars are religious denomination
or section thereof' is in fact a declaration of their status and G
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 H
342 SUPREME COURT REPORTS (2014] 1 S.C.R.
A order passed by the Calcutta High Court issuing writ of
mandamus directing the Life Insurance Corporation of India
(hereinafter referred to as L.l.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.
B Immediately after the pronouncement of the judgment, the
Parliament enacted the UC (Modification of Settlement) Act,
1976. The appeal filed against the judgment of Calcutta High
Court was not pressed by UC and the said judgment was
allowed to become.final. This Court rejected the contention of
c the UC 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
0
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
E 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
F 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
G
it was badly argued, inadequately considered or
fallaciously reasoned". (Vide: Smt. Somavanti & Ors. v.
The State of Punjab & Ors., AIR 1963 SC 151;
Baflabhdas Mathuradas Lakhani & Ors. v. Municipal
Committee, Malkapur, AIR 1970 SC 1002; Ambika
H
DR. SUBRAMANIAN SWAMY v. STATE OF TAMIL 343
NADU [DR. B. S. CHAUHAN, J.]
Prasad Mishra v. State of U.P. & Ors., AIR 1980 SC A
1762; and Director of Settlements, A. P. & Ors. v. MR.
Apparao & Anr., AIR 2002 SC 1598)."
35. The issue can be examined from another angle.
Explanation to Order XLVll, Rule 1 of Code of Civil Procedure,
8
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, C
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. D
Rambhai & Ors., AIR 2003 SC 2095).
36. In view of the fact that the rights of the respondent no.
6 to administer the Temple had already been finally determined
by the High Court in 1951 and attained finality as State of E
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 F
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 G
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 H
344 SUPREME COURT REPORTS (2014] 1 S.C.R.
A virtually abrogate the rights of administration conferred on it.
In such a fact-situation, it was not permissible for the
authorities to pass any order divesting the said respondent from
administration of the Temple and thus, all orders passed in this
regard are liable to be held inconsequential and unenforceable.
8
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
C 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 resoondent, nor such
D 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
E 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,
F livestock and grains; the Executive Officer shall be entitled to
receive all the income in cash and kind and all offerings; all
such income and offerings shall be in his custody; all the office
holders and servants shall work under the immediate control
and superintendence of the Executive Officer, though subject
G 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
H for "all matters expressly required or allowed bv this Act to be
DR. SUBRAMANIAN SWAMY v. STATE OF TAMIL 345
NADU [DR. B. S. CHAUHAN, J.]
prescribed". Clause 3 thereof requires approval of the rules A
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.
B
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 cao be exercised. The Act
1959 does not contemplate unguided or unbridled functioning.
On the contrary, the prescription of rules to be framed by the C
State Government under Sections 116 read with Sections 45
and 65, etc. of the Act 1959 indicates th~t the legislature only
intended to regulate and control any incidence of
maladministration and not a complete replacement by
introducing a Statutory authority to administer the Temple.
D
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 E
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 F
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 G
prescribed. The term 'prescribed' has not been defined under
the Act. Prescribed means prescribed by rules. If the word
'prescribed' has not been defined specifically, the same would
mean to be prescribed in accordance with law and not
othe·rwise. Therefore, a particular power can be exercised only H
346 SUPREME COURT REPORTS [2014] 1 S.C.R.
A if a specific enacting law or statutory rules have been framed
for that purpose. (See: Manohar Lal Chopra v. Rai Bahadur
Rao Raja Seth Hirata!, AIR 1962 SC 527; Hindustan Ideal
Insurance Co. Ltd. v. Life Insurance Corporation of India, AIR
1963 SC 1083; Maharashtra SRTC v. Babu Goverdhan
B Regular Motor Service Warora & Ors., AIR 1970 SC 1926; and
Bharat Sanchar Nigam Ltd. & Anr. v. BPL Mobile Cellular Ltd.
& Ors., (2008) 13 sec 597).
44. Shri Subramonium Prasad, learned MG, has brought
c the judgment in ME. 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
0
the judgments of this Court referred to in para 41 supra, thus,
an Executive Officer could not have been appointed in the
absence of any rules prescribing conditions subject to which
such appointment could have been made.
E 45. However, Shri Subramonium Prasad, learned MG,
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
F 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:
G
(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
H from among the Podhu Dikshitars (clause 4);
DR. SUBRAMANIAN SWAMY v. STATE OF TAMIL 347
NADU [DR. B. S. CHAUHAN, J.]
(b) At the time of issuing the order of appointment A
of Executive Officer, the Podhu Dikshitars were
given full opportunity of hearing and the powers and
duties of the Executive Officer as defined by the
Commissioner would show that the religious affairs
have not been touched at all and the trustees and B
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 c
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 D
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 E
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.
F
46. Be that as it may, the case is required to be
considered in light of the submissions made on behalf of the
State of Tamil Nadu and particularly in view of the written
submissions filed on behalf of the State. ·
47. Even if the management of a temple is taken over to G
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 H
348 SUPREME COURT REPORTS [2014] 1 S.C.R.
A 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
B 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
C so as to be co-terminus with the removal of the consequences
of maladministration. The reason is that the objective to take
over the management and administration is not the removal and
replacement of the existing administration but to rectify and
stump out the consequences of maladministration. Power to
D 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
E standards, to restrain or restrict. The word 'regulate' is diffiitult
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
F 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 &
G Company Limited & Ors. Partha Sarathi Sen Roy & Ors.,
(2013) a sec 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 &
H
DR. SUBRAMANIAN SWAMY v. STATE OF TAMIL 349
NADU [DR. B. S. CHAUHAN, J.]
Ors. v. Modern Coop. Group Housing Society Ltd. & Ors., A
(2010) 13 SCC 336, this Court held:
"It is a settled proposition of law that what cannot be done
directly, is not permissible to be done obliquely, meaning
thereby, whatever is prohibited by law to be done, cannot 8
legally be effected by an indirect and circuitous
contrivance on the principle of "quando aliquid prohibetur,
prohibetur et omne per quod devenitur ad il/ud". An
authority cannot be permitted to evade a law by "shift or
contrivance"."
c
(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).
D
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 E
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 F
and under what circumstances his appointment was
necessitated. Even otherwise, the order in which no period of
its operation is prescribed, is not sustainable being ex facie
arbitrary, illegal and unjust.
50. Thus, the appeals are allowed. Judgments/orders G
impugned are set aside. There shall be no order as to costs.
R.P. Appeals allowed.
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