You are on page 1of 38

IN THE SUPREME COURT OF INDIA

(CIVIL APPELLATE JURISDICTION)


I.A. NO. OF 2018
IN
WRIT PETITION (CIVIL) NO.476/2012

IN THE MATTER OF

SRI DAYANANDA SARASWATHI SWAMIJI AND ANR. Petitioners

VERSUS

STATE OF TAMIL NADU AND ORS. Respondents

AND IN THE MATTER OF

M.V. Soundararajan
Convener, Temples Protection Movement,
Shri Balaji Venkateshwara Swamy temple
Chilkur , Moinabad, Ranga Reddy District,
Telangana Not a party/ Applicant

APPLICATION FOR IMPLEADING THE APPLICANT AS PARTY INTERVENER IN


THE ABOVE WRIT PETITION

To
The Hon’ble Chief Justice of India and His
Companion Judges of the Supreme Court of India
The humble petition of the
applicant above named

MOST RESPECTFULLY SHOWETH:

1. This is an application for impleading the applicant as party intervener in

in the above Writ Petition filed under Article 32 of the Constitution of India

challenging among other things the Constitutional validity of the Andhra

Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987

[(Act 30 of 1987), (hereinafter referred to as ‘the Andhra Pradesh Act’) as being

ultra vires of Articles 14, 15(1), 25, 26 and 31A(1)(b).

.
2

2. The petitioner states that he has been very active in fighting against

corruption, politicization and commercialization of the Temple System on behalf

of the devotees for the past several decades. The petitioner has helped

implement several reforms in temple administration in Chilkur Balaji Temple (no

Hundi, no VIP system, no offerings etc.) which has made it a unique temple and

recognized through a GO by the Government. The petitioner is the Convener of

Temples Protection Movement, Editor VAK (Voice of Temples) Journal which is

the largest circulated monthly journal on temple administration and author of

several books such as ‘Legislation for Temple Destruction’. The petitioner has

contributed to amendment made to Andhra Pradesh Endowments Act through

Act 33 of 2007 by spearheading a long-drawn devotee movement for

reformation in temple administration. The petitioner has also been active in

protecting the interests of Temples and devotees by assisting the Courts in

various important matters. The Petitioner was instrumental in filing the written

arguments as vice president of Telangana Archaka Samakhya in the Supreme

Court case A.S. Narayana Deekshitulu vs State of Andhra Pradesh {(1996) 9 SCC

548} = AIR 1996 SC 1765 (noted in para 132 of the judgement) which paved the

way for constitution of the Pay Scales Committee and also the Welfare

Committee for the Archakas and eventually resulted in this Hon’ble Court

issuing further directions and in that case through judgement reported in

{(1997) 5 SCC 376} = AIR 1997 SC 3702. The petitioner has also assisted the

Hon’ble High Court as an intervener in the TTD Swarnamayam case which

helped the Hon’ble High Court to formulate its views for protecting the sanctity

of the Tirumala temple.


3

3. The Petitioner having perused the counter affidavit filed by Respondent

State of Andhra Pradesh dated 1.10.2015 more specifically Para 9 & Para 10

where it is stated that a Dharmika Parishad consisting of eminent hindu

devotees has been constituted as per provisions of amendment Act 33 of 2007,

welfare measures for Archakas taken and low income temples have been

exempted from the provisions of the Act all of which are factually incorrect,

decided to place the true ground situation before this Hon’ble Court as

intervener and assist this Hon’ble Court in ensuring justice in this important case.

The Petitioner had tried to bring to the notice of this Hon’ble Court the true facts

by filing an intervener petition I.A. No. 2 of 2016 in SLP (Civil) No 2015-2016 of

2015 which was tagged with the above Writ Petition (vide Order dated

25.2.2016 in W.P. (C) 476 of 2012 as follows :- “Tag SLP (C) Nos. 2015-2016/2015

with this Writ Petition and post for final hearing on 13 .07.2016 as first item.”)

challenging the provisions of amended Sec 15 through amendment Act 8 of

2014 bringing on record the dismal nature of the state of the temple system in

the State of Andhra Pradesh due to non-implementation of the orders of this

Hon’ble Court for over two decades and also non-implementation of provisions

of the amendment Act 33 of 2007 which was enacted based on the orders of

this Hon’ble Court. The State of Andhra Pradesh in violation of Art 14 read with

Art 39A obstruction of justice had got the tagged SLP dismissed as infructuous

so that the true facts are not placed before this Hon’ble Court. The State of

Andhra Pradesh has for several decades used this approach of obstruction of

justice in violation of Art 14 read with Art 39A and with a view to bring all the

facts relating to the same in the background of the challenge to Sec 15 of the

amendment Act 8 of 2014 the present intervener petition is being filed so as to

bring to the notice of this Hon’ble Court the subsequent events as to how the

AP Endowments Act has worked out making it unconstitutional in effect. This


4

Hon’ble Court in Namit Sharma vs Union of India in WP No 210 of 2012

judgment dated 13th Sept 2012 made the following important observation

“In the case of Charan Lal Sahu v. UOI [(1990) 1 SCC 614 (667) (para
13), MUKHERJEE, C.J. made an unguarded statement, viz., that In
judging the Constitutional validity of the Act, the subsequent events,
namely, how the Act has worked out, have to be looked into. It can
be supported only on the test of direct and inevitable effect and,
therefore, needs to be explained in some subsequent decision.”
This Hon’ble Court in the past has allowed the Intervener Petitioner to raise

contention that has not been raised by the main Petitioners when there is issue

of Public Interest involved as seen in The Ahmedabad St. Xaviers College ... vs

State Of Gujarat & Anr 1974 AIR 1389, 1975 SCR (1) 173.

4. The petitioner is deeply distressed by the move of the present

Government in bringing about the AP Endowments Amendment Act 8 of 2014

which is detrimental to the very future of the temple system in the whole

country. Even though the State has been bifurcated, the petitioner feels that as

a devotee of all the temples in the State of Andhra Pradesh for whose sake the

petitioner had fought for the better part of his life the petitioner would come

under the category person-in-interest to file this petition as an intervener

devotee. The petitioner had also petitioned His Excellency the Hon’ble Governor

against giving assent to the Bill on 9th Sept 2014 under Art 200. The petitioner

wanted to bring to the notice of this Hon’ble Court several points as an

intervener to enable this Hon’ble Court to give a decision in the interest of the

temple system at large and protect the rights of devotees who are entitled to

their temples free from politicization, corruption and commercialization.

5. The petitioner states that recently the Minister for Endowments

Pydikondala Manikyala Rao has underlined the need to find out an alternative
5

system with autonomous status for the maintenance and supervision of temples.

He also stated that there is a need to bring out the temples from government

control, that the autonomous bodies should be accountable towards devotees

and that only the autonomous bodies can prevent the encroachment of temple

properties. The statement of the Hon’ble Minister of Endowments substantiates

the points brought to the notice of this Hon’ble Court by a person of such

eminence as the former Chief Secretary of the State of Andhra Pradesh through

an application for intervention in the tagged Special Leave Petition 2015-2016

of 2015 numbered as I.A.No. 98394 of 2017 :-

(1) That the Archaka community in the State of Andhra Pradesh has

been impoverished due to the draconian Provisions of AP Endowments

Act 1987 and the lack of initiative of the Executive machinery of the

Government in implementing the due orders of this Hon’ble Court and

the amendments through Act 33 of 2007

(2) That there has been no serious attempt to constitute the Andhra

Pradesh Dharmika Parishad with eminent devotees which was

envisaged as a policy making body with due representation to all stake

holder devotees.

(3) That the affairs of Hindu Temples should not be in the hands of the

Government machinery as this will eventually lead to the destruction of

the temple system in our country (4) That the continued Government

mal-administration of Hindu Temples is actually causing a slow decay of

Hinduism in the rural areas and simultaneously enabling conversions

and thereby giving advantage to other denominations going against

the Secular spirit of our Constitution as envisaged in Article 27

6. The petitioner also wanted to bring to the notice of this Hon’ble Court

through intervener petition numbered I.A. No 2 of 2016 along with I.A.No. 84638
6

of 2017 permission to place additional facts and grounds in the tagged Special

Leave Petition 2015-2016 of 2015 whereby by subsequent Government orders

the respondent state itself acknowledged that the contentions of the petitioner

herein with regard to the Amendment Act 8 of 2014 and that the temples

should be freed from the control of the Government. A true copy of the

Application I.A. No. 2 of 2016 filed on 12.05.2016 is annexed hereto as

Annexure-A1. The application I.A. No. 84368 of 2017 filed on 01.09.2017 is

annexed hereto as Annexure-A2.

7. Immediately, the respondent state decided get the tagged Special leave

petition dismissed as infructuous as it would expose the State Government and

weaken its case in this petition to which the Special Leave Petition was tagged

In view of the fact that Sec 15 along with other Sections of the Andhra Pradesh

Charitable and Hindu Religious Institutions and Endowments Act 30 of 1987 is

challenged as being violative of Art 25 and Art 26 of the Constitution. This action

of the State Petitioner is clearly in violation of Art 14 read with Art 39-A

obstruction of justice

8. The Petitioner brought all the above facts to the notice of this Hon’ble

Court in the application for permission to file Review Petition numbered IA

26510 of 2018 in REVIEW PETITION (CIVIL) Diary No(s). 2714 of 2018 M.V.

Soundararajan vs State of Andhra Pradesh and Others, on the order of this

Hon’ble Court dated 12th January 2018 dismissing the Special Leave Petition as

infructuous based on the submission of the State Counsel. This Hon’ble Court

vide order dated 6th March 2018 granted the permission sought. The Copy of

the Application and the order of this Hon’ble Court is enclosed as Annexure –

A3.
7

9. In view of the fact that though the permission to file the Review Petition

was granted. this Hon’ble Court did not review its order dated 12th January 2018

with the result the petitioner has been advised to file the present intervener

application in the interest of justice and to preserve the thousands of years old

culture of temple worship, a fundamental duty cast on the petitioner by the

Constitution. The petitioner was advised to file this intervener petition in the

main writ petition to bring all the below points which was articulated in the

earlier intervener petition in the tagged Special Leave Petition SLP (C) No 2015-

2016 of 2015 to the notice of this Hon’ble Court in the interest of justice. The

petitioner feels that it is his fundamental duty as a citizen of India “to value and

preserve the rich heritage of our composite culture ” as enumerated under

Article 51A (f) of the Constitution of India. This article was explained by National

Commission to Review the Working the Constitution (constituted by the

Government of India by a resolution dated 22.02.2000) in its report as follows: -

Composite culture

3.40.1 Clause (f) of article 51A requires us to value and preserve the
rich heritage of our composite culture. It follows that we may not
break each other’s places of worship, set fire to religious texts, or beat
up one another’s priests or obstruct those who exercise their
Fundamental Right under article 25 to profess, practice and
propagate religion. …..”

This Hon’ble Court which has in its emblem यतो धर्म स्ततो जयः (Yatho

Dharmastatho Jayaha) has the very important task of protecting the spirit of

Dharma. While protecting Dharma will protect (धर्ो रक्षतत रतक्षतः), failure to do so

will cause destruction as per Mahabharata, "Dharmaeva hato hanti / Dharmo

rakshati rakshitah" (One who destroys Dharma is destroyed by Dharma / One

who protects Dharma is protected by Dharma) This Hon’ble Court itself has
8

noted in the case CRIMINAL APPEAL NOS. 446-449 OF 2004 judgement "Jatro

dharmo hyadharmena Satyam Jatranrutenacha Hanyate prekshyamananam

Hatastrata Sabhasadah"(Where in the presence of Judges "dharma" is overcome

by "adharma" and "truth" by "unfounded falsehood", at that place they (the

Judges) are destroyed by sin) "Padodharmasya Kartaram Padah

sakshinomruchhati Padah sabhasadah sarban pado rajanmruchhati"(In the

adharma flowing from wrong decision in a Court of law, one fourth each is

attributed to the person committing the adharma, witness, the judges and the

ruler".) It is such acts of adharma in violation of Art 14 read with Art 39-A

obstruction of justice by the Andhra Pradesh State on 12th January 2018 that

has brought disrepute to our Justice system. The table in Annexure-A3 details

important Chronological events of how the State has always acted in violation

of Art 14 read with Art 39-A obstruction of justice. In view of the above guidance

in the sloka quoted by this Hon’ble Court that it is the fundamental duty of each

one of us to ensure Justice as per Dharma the petitioner who cannot be a silent

witness therefore craves leave of this Hon’ble Court to bring to the notice of this

Hon’ble Court several points as an intervener to enable this Hon’ble Court to do

justice as per Dharma in the larger interest of preserving the culture of temple

system of worship. This Hon’ble Court in Union Carbide Corporation Etc. ... vs

Union Of India Etc. Etc on 3 October, 1991 has held as follows:- “such Legal and

procedural technicalities should yield to the paramount considerations of justice

and humanity. It is of utmost importance that in an endeavor of such great

magnitude where the court is trusted with the moral responsibility of ensuring

justice”. This Petition popularly being called by the devotees as the Hindu

Temple Freedom petition is looked at as the last final attempt to save the temple

system from the clutches of the State machinery and the devotees are hoping
9

this Hon’ble Court can deliver justice in this very important case as per the

principles of Dharma.

9.1 The Andhra Pradesh Government succumbing to political pressure to

rehabilitate party men in temple trust boards in large numbers has put the short

term interests of the Political Party in power ahead of the long term interests of

the temple system in the Country in drafting the Andhra Pradesh Charitable and

Hindu Religious Institutions and Endowments (Amendment) Ordinance, 2014

(Ordinance No 3 of 2014) and the corresponding Andhra Pradesh Charitable

and Hindu Religious Institutions and Endowments (Amendment) Act 8 of 2014.

The leader of the opposition in the Legislative Council has also articulated the

view that The Andhra Pradesh Charitable and Hindu Religious Institutions and

Endowments (Amendment) Act 8 of 2014 will result in politicization of temple

administration and undo the efforts made so far to free temples from political

interference.

9.2 THAT the draconian AP Endowments Act 30/87 on the basis of Justice

Challa Kondiah Commission was passed on 9.4.1987 against the wishes of

Religious leaders and overriding the concerns of the opposition for referring it

to a select committee has caused grievous damage to the religious institutions

in the State leading to excessive politicization, commercialization and corruption

in the temple administrations. A strong devotee movement started for

reformation in temple administration due to the havoc created by the AP 30/87

Act and by divine grace the Act was referred to a Select Committee exactly on

9.4.2007 !20 years hence correcting a historic blunder. The Select Committee

consisting of members from all Political parties functioned as pure devotees and

came up with a revolutionary report and the Act was amended through Act 33

of 2007 which was also appreciated by this Hon’ble Court. The Act mandated
10

the constitution of a Dharmika Parishad based on the following Select

Committee recommendation

“A semi-autonomous Apex body called Andhra Pradesh Dharmika Parishad


is sought to be created to oversee the management of the entire temple
system in the state. It would most likely discharge most of the functions being
currently performed by the Government. It would have the authority and
responsibility to institute appropriate administrative, financial and legal
mechanisms to ensure that Endowments are preserved, dilapidated temples
are renovated, temples become pilgrim-friendly, the rich traditions and
cultural heritage are preserved and all stake holders participate in a spirit of
partnership with devotion and dedication to bring temples back into social
life as centers of moral education, human welfare, fine arts and architecture.
It will not be merely an advisory body as envisaged earlier. It will be the policy
making body with substantial autonomy to coordinate and facilitate better
management of temples. The Sec 152 A (1) proposed in the amendment Bill
is modified accordingly”
The present Government succumbing to political pressure within the Party to

rehabilitate party workers in temple trust boards in large numbers has embarked

upon this misguided amendment to an Act which had broad Political consensus

and has acted unilaterally without taking anybody into confidence. The Process

followed in coming up with this amendment itself is faulty as the Dharmika

Parishad was first abolished through G.O.Ms.No 293 Revenue (Endowments-I)

department dated 25th August 2014 and the views of the Parishad was not

sought which was the intention of the Select Committee in creating such a body.

Sec 17 of the Act reads as follows: -

Sec.17 Procedure for making appointments of trustees and their term:- (1) in
making the appointment of trustees under Section 15, the Government, the
Commissioner, the Deputy Commissioner or the Assistant Commissioner, as
the case may be shall have due regard to the religious denomination or any
such section thereof to which the institution belongs or the endowment is
made and the wishes of the founder.
11

The amendments to Sec 15 increasing the number of people in the trust boards

of all categories of temple and insertion of Sec 163 is unconstitutional as it has

been done without due regard to the religious denomination in violation of the

provisions of Sec 17 of the Act without involvement of the Dharmika Parishad

which as a body acts as a custodian of the rights of the Hindu devotee

population for better administration of all temples a right protected under Art

25 and Art 26 of the Constitution. The Dharmika Parishad as a body is akin to

the concept of a trust board under Sec 15 for each individual temple this is a

body which oversees the administration of all temples and a decision such as

this by a secular Government bypassing such a statutory body created out of

the wisdom gained by the legislatures in the past is unconstitutional and in

violation of Art 25 and Art 26.

9.3 THAT the amendment to Sec 15(2) increasing the number of members

from three to five in trust boards of low income temples goes against the very

objective of amendment Act 33 of 2007 to revive the low-income temples which

constitute over 90% of the temples as articulated in the Statement of Objects

and Reasons and approved by the Select Committee this has been put in

jeopardy by this amendment. For small low-income temples of income less than

2 lakhs under Sec 15(2) the Select Committee had deliberately kept the number

of members in the trust board as a low count of three as already there is a ‘may’

clause for constitution of trust boards here. It was felt that the trust boards are a

burden to such small low-income temples and the move to now increase this

number to five members through the amendment Bill is not correct and will

cause strain on the meagre resources of such temples. The Bill also goes against

the commitment given to this Hon’ble Court and recorded as such in the 1997

judgement that low income temples will be exempted. In fact, the Dharmika

Parishad had resolved that such temples are to be managed by the Archakas
12

themselves without trust boards and now by adding members it creates

incentive for political pressure to constitute unnecessary trust boards for such

small low-income temples. Sec 15(2) itself was amended to read as follows by

amendment Act 33 of 2007

“where the income of the institution is less than Rs 2 lakhs per annum,
the Deputy Commissioner concerned may constitute a Board of Trustees
consisting of three persons in respect of each such temple keeping in view
the traditions, sampradayams and wishes of the devotees”

Clearly the decision to increase the number of the trustees from three to five by

the Government has not been taken keeping in view the traditions,

sampradayams and wishes of the devotees as this was done bypassing the

Dharmika Parishad a statutory body created by legislative wisdom to protect the

traditions, sampradayams and wishes of the devotees. Therefore, the

amendment to Sec 15(2) read with Sec 163 is in violation of Art 25 and Art 26 of

the Constitution.

9.4 THAT through amendment of Sec 15 of the Act the concept of reserving

a place in the trust board of all temples to the ‘donor’ has been given a goby

through rewording of Proviso No 5 and deletion of the word ‘donor’. The

proviso has been considerably diluted with an objective to insert more political

members in trust boards of all categories of temples. This Hon’ble Court in

Pannala Pitti case protected the right of the members of the founder family to

not only have a place in the trust board but also to head it based on the

following pragmatic consideration

It is seen that the perennial and perpetual source to establish or create


any religious or charitable institution or endowment of a specific
endowment is the charitable disposition of a pious persons or other
benevolent motivating factors, but to the benefit of indeterminate
number of people having the common religious faith and belief which
13

the founder espouses. Even a desire to perpetuate the memory of a


philanthropist or a pious person or a member of the family or founder
himself may be the motive to establish a religious or charitable institution
or endowment or specific endowment. Total deprivation of its
establishment and registration and takeover of such bodies by the State
would dry up such sources or acts of pious or charitable disposition and
act as disincentive to the common detriment. Hindus are majority in
population and Hinduism is a major religion. While Articles 25 and 26
granted religious freedom to minority religions like Islam, Christianity and
Judaism, they do not intend to deny the same guarantee to Hindus.
Therefore, protection under Articles 25 and 26 is available to the people
professing Hindu religion, subject to the law therein. The right to establish
a religious and charitable institution is a part of religious belief or faith
and, though law made under clause (2) of Article 25 may impose
restrictions on the exercise of that right, the right to administer and
maintain such institution cannot altogether be taken away and vested in
other party; more particularly, in the officers of a secular Government.

It is a well known fact that not all temples have recognized founders or members

of founder family and in their absence it is only the ‘donors’ of the respective

temples who are attached to the deity who ensure the maintenance by

donations. Thus the amendment to Sec 15 doing away with place for donors in

the trust board goes against the ratio of this Hon’ble Court’s judgement in

Pannalal Bansilal Pitti vs State of Andhra Pradesh (AIR 1996 SC 1023) for temples

without recognized founders and therefore is in violation of Art 25 and Art 26

of the Constitution.

9.5. THAT the approach to abolish duly constituted trust boards by a fresh

Government and filling the same with their own political party members was

negated by the High Courts in Tamil Nadu and Karnataka M.R. Subramanian

And Ors. vs State Of Tamil Nadu, (1997) 2 MLJ 151. The Courts have taken the

position that this cannot be done without following the statutory provisions

relating to removal of trustees in the Act. A new approach has been invented to
14

circumvent judicial intervention by amending Sec 15 to increase members and

show this as a reason to abolish existing trust boards through new Sec 163. This

will set a dangerous precedent as every new Government will keep adding

members by amending Sec 15 in the future to achieve this same purpose and

thus cause excessive politicization of the temple system. If this approach is

consented by this Hon’ble Court then many State Governments will follow suit

and this will lead to excessive politicization of temple trust boards all over the

country. This Hon’ble Court has in the famous podu dikshitars case in Civil

Appeal No 10621 of 2013 has reiterated the law on taking over of temple

administration by the Government

Even otherwise it is not permissible for the State/Statutory Authorities to


supersede the administration by adopting any oblique/circuitous method.
In Sant Lal Gupta & Ors. v. Modern Coop. Group Housing Society Ltd. &
Ors., (2010) 13 SCC 336, this Court held: “It is a settled proposition of law
that what cannot be done directly, is not permissible to be done obliquely,
meaning thereby, whatever is prohibited by law to be done, cannot
legally be effected by an indirect and circuitous contrivance on the
principle of “quando aliquid prohibetur, prohibetur et omne per quod
devenitur ad illud”. An authority cannot be permitted to evade a law by
“shift or contrivance

The State Government has tried to achieve through amendments Sec 15 and

Sec 163 i.e abolition of duly constituted trust boards for a fixed term in an

oblique/circuitous method to circumvent judicial intervention and this is in

violation of the law laid down by this Hon’ble Court in Civil Appeal No 10621 of

2013. Further the takeover of the administration of the temples through Sec 15

and Sec 163 by the Government is in itself illegal as there is no time limit specified

in violation of the ratio of this Hon’ble Court’s judgement in Civil Appeal No

10621 of 1023
15

Even if the management of a temple is taken over to remedy the evil, the
management must be handed over to the person concerned immediately
after the evil stands remedied. Continuation thereafter would tantamount
to usurpation of their proprietary rights or violation of the fundamental
rights guaranteed by the Constitution in favour of the persons deprived.
Therefore, taking over of the management in such circumstances must be
for a limited period. Thus, such expropriatory order requires to be
considered strictly as it infringes fundamental rights of the citizens and
would amount to divesting them of their legitimate rights to manage and
administer the temple for an indefinite period. We are of the view that the
impugned order is liable to be set aside for failure to prescribe the
duration for which it will be in force. Super-session of rights of
administration cannot be of a permanent enduring nature. Its life has to
be reasonably fixed so as to be co-terminus with the removal of the
consequences of maladministration. The reason is that the objective to
take over the management and administration is not the removal and
replacement of the existing administration but to rectify and stump out
the consequences of maladministration. Power to regulate does not mean
power to supersede the administration for indefinite period. Regulate is
defined as to direct; to direct by rule or restriction; to direct or manage
according to the certain standards, to restrain or restrict. The word
`regulate’ is difficult to define as having any precise meaning. It is a word
of broad import, having a broad meaning and may be very
comprehensive in scope. Thus, it may mean to control or to subject to
governing principles. Regulate has different set of meaning and must take
its colour from the context in which it is used having regard to the
purpose and object of the legislation. The word `regulate’ is elastic
enough to include issuance of directions etc. (Vide: K. Ramanathan v. State
of Tamil Nadu & Anr., AIR 1985 SC 660; and Balmer Lawrie & Company
Limited & Ors. Partha Sarathi Sen Roy & Ors., (2013) 8 SCC 345)

9.6 THAT the ratio of the judgment of this Hon’ble Court in the Chidambaram

temple case in Civil Appeal No 10620 of 2013 dated 6.1.2014 upholding the

right of hereditary trustees to administer the temple so long as it is well managed

and even in case of mismanagement the Government takeover should be for a


16

specified period and only for the purpose of remedying the mismanagement

qualifies the earlier Pannalal Bansilal Pitti vs State of Andhra Pradesh (AIR 1996

SC 1023) judgement

“Though abolition of hereditary right in trusteeship under Section 16 has


already been upheld, the charitable and religious institution or
endowment owes its existence to the founder or members of the family
who would resultantly evince greater and keener responsibility and
interest in its proper and efficient management and governance. The
autonomy in this behalf is an assurance to achieve due fulfillment of the
objective with which it was founded unless, in due course, foul in its
management is proved. Therefore, so long as it is properly and efficiently
managed, he is entitled to due freedom of management in terms
of the deed of endowment or established practice or usage, In case a
board of trustees is constituted” (Para 26)

Sri Adi Visheshwara Of Kashi Vishwanath Temple , Varnasi And Ors vs State

of UP And Ors [1997 (4) SCC 606]

“The A.P. Act relates to abolition of hereditary right of the founders of the
religious institution or endowment or the Board of Trustees. That Act was
based upon the Report of Justice Kondiah Commission and has abolished
those rights. While the validity of the provisions was upheld, the
provisions were read down to indicate that all hereditary trustees need
not be painted with the same brush as having committed misconduct or
mismanaged the institution or endowment. In Pannalal’s case, this Court
examined the question in detail and held that if in an individual case a
hereditary trustee incurs any disqualification, an enquiry may be
conducted and one of the members of the family of the founder may be
appointed as a hereditary trustee along with non-hereditary trustees and
as a Chair-person of the Board of Trustees so that the institution would be
properly maintained and rituals and ceremonies conducted as per the
custom, usage and practice.”

The Karnataka High Court Division Bench in WA 3440/2005, Sri Sahasra

Lingeshwara Temple, vs State Of Karnataka 2007 (1) KarLJ 1 while striking

down the entire Endowments Act as unconstitutional has also articulated the
17

view that well managed temples under active management of hereditary

trustees cannot be taken over and a committee formed under the guise of

better management by the Government.

Article 26(b) provides for a law with regard to regulating or restricting any
political and other secular activities and providing for social welfare etc.
But taking over and providing administration in respect of the
Government temples, despite their better management certainly would
be in violation of not only Article 14 but also under Articles 25 and 26 of
the constitution of India. The state Government would be well advised to
take over such temple only in the event of an adverse report after an
opportunity against that temple. Taking all temples and administering
them without any adverse order, as rightly argued would be hit by Article
26 of the Constitution of India. (Para 64)

The following excerpt from the Statement Of Objects and Reasons of

Karnataka Hindu Religious Institutions and Charitable Endowments

(amendment) Act , 2011 illustrates the fact that this Hon’ble Court has

accepted the view of the Karnataka Division Bench that well administered

temples under Hereditary trustees cannot be taken over by the State as it is

in violation of Art. 26. The Karnataka Legislature has amended its

Endowments Act to be in conformance of the same by protecting the rights

of hereditary archaka and trustees families.

The Karnataka Hindu Religious Institutions and Charitable Endowments


Act, 1997 was struck down by the High Court of Karnataka in Writ Appeal
No. 3440/2005. In the civil Appeal No. 5924/2008, the Supreme Court of
India has stayed the operation of the judgement of the High Court and
permitted to enforce the Act except the provision of section 25 of the Act.

The Government had constituted a high level committee to examine the


implication of the judgement and the issue in detail. The High Level
Committee had submitted its report. Having considered the report of the
High Level Committee and the directions of the Supreme Court, it is
18

considered necessary to amend the Karnataka Hindu Religious


Institutions and Charitable Endowments Act, 1997 for the following,
namely:-

(3) To protect hereditary rights of the trustees and to continue the


management of such temples by the hereditary trustees.
(4) To protect the hereditary right of the Archaks and temple
servants and to allow their legal heirs to continue in service

“25A. Provision relating to institution managed by Hereditary


Trustee.- (1) No committee of management shall be constituted in respect
of the notified institutions managed exclusively by hereditary trustees. The
power of management shall vest in such hereditary trustee.

This Hon’ble Court has considered the above amendment to Sec 25 through

an interim order dated 10.10.2011 in the pending Civil Appeal 5924/2008.

The State has filed an application (I.A.No.17) seeking permission to give


effect to the amended Section 25 of the Act. The interim order granted
was with reference to the then existing Section 25. Amended Section 25
is not the subject matter of the said interim order. Therefore the
application is redundant…

The takeover of well managed temples by the State and its continued

occupation with lopsided priorities in fund allocation in violation of custom,

usage and tradition is in violation of Art 25 and Art 26 of the Constitution as

the temples are run only with materialistic motive (Ticket, VIP culture, Hundi

income etc.) and in a corrupt atmosphere like a museum/cinema hall and least

attention being paid to Spiritual matters and this has increased conversions.

The Madras High Court in the famous Shirur Mutt judgment (1952 I MLJ 557)

has defined the right to maintain in Article 26 (a)


19

The right to maintain implies the right to continue the institution


according to the established usage, to carry on the worship and to make
it function in the manner in which it has been functioning according to
long established usage. Except on the ground of public order and morality
and health, this right cannot be in any manner affected by legislation. The
religious sect or denomination considered as an autonomous body has
got an unquestioned right to manage its own affairs in matters of religion

This Hon’ble Court in State Of Kerala, Etc vs Very Rev. Mother Provincial, 1970

AIR 2079, 1971 SCR (1) 734 laid down the law for Founders of educational

institutions which is equally applicable to the religious institutions such as

temples.

The next part of the right relates to the administration of such institutions.
Administration means 'management of the affairs' of the institution. This
management must be free of control so that the founders or their
nominees can mould the institution as they think fit, and in accordance
with their ideas of how the interests of the community in general and the
institution in particular will be best served. No part of this management
can be taken away and vested in another body without an encroachment
upon the guaranteed right.
The amendments to Sec 15 and addition of Sec 163 by which the State is

perpetuating its control over the Religious institutions by adding more members

into the trust board is in violation of the ratio of the Supreme Court judgement

in Civil Appeal 10620 of 2013 qualifying the ratio in earlier judgements and in

violation of Art 25 and Art 26. This Court has to not only strike down the

amendments as unconstitutional but also read down the law so that the proviso

in Sec 15

Provided also that where the Board of Trustees is not constituted for any
reason, the recognized founder or Member of founder’s family shall
discharge the functions of the Board of trustees till a new Board of
Trustees is constituted.
20

Is interpreted as per the ratio of the Chidambaram judgement of the Supreme

Court so that the administration is returned back to the recognized founder or

Member of founder’s family (same as hereditary trustee or his family member for

ancient temples as per Sec 17 Explanation-I) as the trust boards can only be for

a limited period of time and that too only when foul in management is proved

and further Government control through Sec 15 and Sec 29 cannot control for

eternity it can be only till the mis-management is set right.

9.7 THAT the Government issued G.O.Rt.No. 322 dated 25th Feb 2012

acknowledging the fact that proper persons are not being selected as trustees

in the trust boards on the basis of observations noted by this Hon’ble Court in

various orders

1. The Commissioner, Endowments Department is informed that Sections


15, 17, 18 and 19 of the A.P. Charitable & Hindu Religious Institutions &
Endowments Act, 1987 deals with appointment of Board of Trustees i.e,
procedure for making appointments of trustees and their term,
qualification of trusteeship and disqualification for trusteeship. Rules have
also been framed wherein the competent authority has to cause a
thorough check of the antecedents of the names proposed, on the basis
of which, further action is taken as per procedure including publication of
notification calling for applications as first step. Recent Hon’ble High Court
judgments clearly require that a thorough, detailed and comprehensive
check of the antecedents has to be done prior to appointment.

2. It is also informed that almost all temples deal with cash, jewellery and
antique idols etc.

3. Government after taking the above facts into consideration have


decided that the Department must cause a proper antecedent verification
enquiry in future as per the Endowments Act and Rules through the
concerned District Collector who may call for a report from a Committee
comprising of the Revenue Divisional Officer / Deputy Superintendent of
21

Police / Concerned Endowment Department Deputy Commissioner, who


is Member – Convener.

4. The Commissioner of Endowments Department is required to take


further necessary action .

5. All District Collectors are also requested to take further necessary action
in forming ‘Committees’ in all Districts for the above mentioned purpose.

The Government then issued G.O.Rt.No. 1297 dated 3rd Sept 2012 allowing

provisional appointments to trust boards citing the reason that the procedure as

per G.O.Rt.No. 322 is taking time for proper antecedent verification. The Hon’ble

High Court in WP 39178 of 2012 suspended the operation of G.O.Rt.No 1297

noting that there is nothing in the Act allowing for provisional appointment of

trustees without proper antecedent verification. The Government then issued

G.O.Rt.No 414 dated 21st March 2013 keeping in abeyance G.O.Rt.No. 322 and

resurrecting the same flawed approach of antecedent verification by Assistant

Commissioners a problem which was acknowledged by the Government. It is

against the above background that the present amendment to Sec 15 and Sec

163 does not make sense as it goes about adding more people to the trust

boards thus compounding the problem of politicization and criminalization of

trust boards for which there is as yet no solution with the Government. Further

in a short time the Government has to complete the antecedent verification of

thousands of applicants as it has embarked on constitutions of trust boards for

all temples in one go. The amendments to Sec 15 and insertion of Sec 163 which

aggravates the current situation of politicization and criminalization of trust

boards is in violation of Art 25 and Art 26 of the Constitution.

9.8 THAT the claim of the Government that it is bringing about amendments

to the Act for better administration of the temples is hollow as it is now over nine

years since the Act has been amended through Act 33 of 2007 and the scheme
22

for improving the livelihood of the Archaka families as contemplated by the

amendments based on the directions of this Hon’ble Court is yet to be

implemented and situation continues to be alarming. This fact has been

substantiated by the Andhra Pradesh Dharmika Parishad Sub-Committee on

Service Issues of Temples Employees a committee constituted vide

G.O.Ms.No.1303 Revenue (Endowments-I) Department dated 20-10-2010 and

G.O.Ms.No. 1395 dated 24-11-2010 in its visionary report dated 5.1.2011. The

Report is also attached as Exhibit-A

The Committee in Sec 2.2.3 while tracing the history of the amendments

through Act 33 of 2007 has documented how the Government violated the

directions of the Supreme Court and caused irreparable damage

…Though the Supreme Court had recommended exemption of 90% of


temples from the purview of the Act and had also ordered that hereditary
trustees should not be disturbed unless foul in management is proved ,
the department instead went ahead and implemented the provisions of
the Act in thousands of such temples by appointing an EO or a Manager
and other secular staff. It also mechanically disturbed the Hereditary
Trustee even if the Temples were properly administered by appointing
trustboards and EO/PIMs. It also extended G.O.Ms No 858 Revenue
(Endowments I Dt 8-10-1997) “Rationalization of Pay Scales of Archakas of
the Temples other than Tirumala Tirupathi Devasthanams..

While the pay scales for all secular employees was religiously
implemented and periodically revised the Pay scales and revisions was not
implemented in the case of many Archakas and other Religious staff as
there was no money to pay their salaries after paying the salaries of the
secular employees and be within the 30% statutory limit. The fact that
many Archaka families became impoverished and temples virtually closed
down is clear from the following excerpt from the Statement of Objects
and Reasons of Act 33 of 2007..” Pg(18)

“…The indiscriminate taking over of temples and increase in the secular


staff in violation of the Orders of the Supreme Court has meant that it is
now impossible to implement PRC 2010 scales for the Religious
23

Employees due to the 30% establishment limit in majority of the temples.


Also the lands given to Archakas in lieu of service were disturbed in many
temples with the promise of payscales. The other impact was that the
Endowments Department itself increased the expenditure as it now had
to deal with lot more temples under its control which meant more
Assistant Commissioners, Deputy Commissioners, and Executive Officers
etc…” Pg(19)

2.2.3.2 What can be done to retrieve the Situation with regards to


Archakas and Employees of other Temples?

The cumulative effect of the mismanagement of the affairs of the Religious


Institutions by the Endowments Department has resulted in the present
situation where many temple employees belonging to low income
category especially Archakas and sweepers are not being paid decent
salary and the vision with which the Government amended the legislation
based on the report of the Select Committee is yet to materialize.

The first and foremost thing that needs to be done so that the amended
Act can be implemented at a fast pace is to implement the
recommendation of the Select Committee

“A semi autonomous Apex body called Andhra Pradesh Dharmika


Parishad is sought to be created to oversee the management of the entire
temple system in the state. It would most likely discharge most of the
functions being currently performed by the Government. It would have
the authority and responsibility to institute appropriate administrative,
financial and legal mechanisms to ensure that Endowments are
preserved, dilapidated temples are renovated, temples become pilgrim-
friendly, the rich traditions and cultural heritage are preserved and all
stake holders participate in a spirit of partnership with devotion and
dedication to bring temples back into social life as centers of moral
education, human welfare, fine arts and architecture. It will not be merely
an advisory body as envisaged earlier. It will be the policy making body
with substantial autonomy to coordinate and facilitate better
management of temples. The Sec 152 A(1) proposed in the amendment
Bill is modified accordingly
24

The Government to delegate its powers and functions to Dharmika


Parishad ( under Sec 152(4)). This is needed to ensure that the amended
Act can be effectively implemented to bring about a sea change in the
current environment. (Pg 25-26)

The fact that the Government has instead of implementing the

recommendation of the Committee and strengthening the Dharmika Parishad

for better administration of temple system has in fact done the very opposite by

abolishing the Parishad and brought about the amendments bypassing the

Dharmika Parishad shows that the amendments have nothing to do with better

management of the religious institutions but more to do with filling up of trust

boards with political members. The Dharmika Parishad had made several

recommendations to implement the scheme for Archakas in low income

temples so as to allow them to manage the same without additional staff such

as Managers/Executive Officers etc. to improve their livelihood which was the

objective with which the Act was amended. The Hon’ble High Court in its Order

dated 3.10.2012 in WP 22074 of 2012 has given guidelines on how the income

is to be calculated and also taking into account the decisions of the Government

to allow temples with income less than 2 lakhs to be administered by Archakas.

The amendments to the Act pours water on all the above efforts and have to be

declared as unconstitutional by this Hon’ble Court as it is in violation of Art 25

and Art 26 and also in violation of this Hon’ble Court directions.

In view of the ratio of the judgement of this Hon’ble Court in Rustom Cavasjee

Cooper vs Union Of India 1970 AIR 564, 1970 SCR (3) 530 that not only the

object of a law but its effect on the fundamental rights is to be considered for

the constitutionality

In our judgment, the assumption in A. K. Gopalan's case(1) that certain


articles in the Constitution exclusively deal with specific matters and in
determining whether there is infringement of the individual's guaranteed
25

rights, the object and the form of the State action alone need be
considered, and effect of the laws on fundamental rights of the individuals
in general will be Ignored cannot be accepted as correct.

It is clear based on the report of the Committee on Service Issues of Temple

Employees dated 5.1.2011 that the Government is not implementing the orders

of the Supreme Court which formed the basis for amendment Act 33 of 2007

with the result the entire temple system is a state of decay. The Government has

taken no steps to exempt low income temples from the provisions of the Act as

ordered by the Supreme Court. The Government has taken no steps to

implement the recommendation of the Select Committee the most important

being to constitute the Dharmika Parishad and transferring its powers under the

Act to the body

The deliberate inaction of the Government on the above recommendations so

as to continue its domination on the temples furthering the cause of the political

party in power through amendment Act 8 of 2014 is in violation of Art 25 and

Art 26 of the constitution as it impinges on the right to practice and propagate

the religion by destroying the culture and heritage of temple system which is an

integral part of religion. The Act in its effect further violates the right to preserve

the culture, tradition and heritage of temple worshipers protected under Art

29(1). The Act in its effect is in violation of Art 21 in its expanded form articulated

by this Hon’ble Court in Ramsharan Autyanuprasi & Anr vs Union Of India & Ors

on 14 November, 1988 Equivalent citations: 1989 AIR 549

It is true that life in its expanded horizons today includes all that give
meaning to a man's life including his tradition, culture and heritage and
protection of that heritage in its full measure would certainly come within
the encompass of an expanded concept of Article 21 of the Constitution

The Act in its effect is in violation of Art 14 and Art 15(1) as only temples

belonging to the Hindu Religion are being discriminated against and subject
26

to destruction in the name of regulation. The Act in its effect is in violation of

Art 19(1)(g) as it has become impossible for Archakas and other temple workers

to continue in their chosen profession due to the mismanagement of the affairs

by the Government in the name of regulation. The Act in its effect is in violation

of Art 27 as the tax money paid by the Hindu devotees is being used to destroy

their culture, tradition and heritage and thus furthering the cause of other

religion through increased conversions. The Act in effect is in violation of Art

31A(1)(b) as the Government in the name of regulation is in perpetual control

of the temple properties and putting the same to use for its political ends

through the political trust boards.

The Committee on Service Issues of Temple Employees defined Public Interest

as follows :-

What exactly is Public Interest Here? The Agamas have defined this very
clearly. The following are extracts from the book “The Agama
Encyclopedia” by Prof S.K Ramachandra Rao Vol 3

“Because the safety, security, wealth and welfare of the country depends
upon regular worship ( six times, three or two times a day) conducted in
the temple, the ruler of the land or the people must see that the worship
is not interrupted due to the penury of the priest. It is prescribed therefore
that endowments of lands are made upon the priest free of taxes so that
his family may live in comfort”. (Pg 41-42)

The Act in effect by continuing to keep the Archaka families in a state of penury

and not ensuring continuity of rituals is against public interest and in violation

of Art 21 by putting in jeopardy the safety, security, wealth and welfare of the

State and also in violation of Art 38(1) and Art 51A(f) directive principles. The

Committee on working of Constitution defines Art 51A (f)

3.40.1 Clause (f) of article 51A requires us to value and preserve the rich
heritage of our composite culture. It follows that we may not break each
other’s places of worship, set fire to religious texts, or beat up one
27

another’s priests or obstruct those who exercise their Fundamental Right


under article 25 to profess, practice and propagate religion.

The Act in effect in the name of regulation and taking over of several low income

temples and changing their religious character that existed as on 15 th day of

August 1947 by not ensuring continuous rituals and virtually shutting them

down as accepted by the Government in the Statement of Objects and Reasons

to Act 33 of 2007

“Statement of Objects and Reasons (Act No 33 of 2007)


“Over the last two decades, there has been a substantial increase in
pilgrim flow in certain temples while many of the old village temples have
been languishing without any traditional rituals being performed. There
have been numerous representations from the Archakas that a strict
adherence to the provisions of the Act have created difficult conditions
for Archakas to continue in the profession. On the one hand, the Act had
abolished the Hereditary rights and simultaneously abolished share in
Hundies and other offerings given by devotees to the temple. The
assumption that Archakas would be able to get salaries and lead a decent
life has not been borne out by experience over the last two decades. As a
result, neither the Government is in a position to pay salaries nor has it
been able to allow the Archakas to manage temples and have shares in
Hundi, plate or any other Rusum in Archana or Seva ticket or any offering
made by devotees. They were also not able to continue enjoyment of the
lands allotted or allowed to be in their possession. As a result, many
traditional Archaka families have become impoverished and the temples
have virtually shut down. In addition, there have been complaints that
traditional temple rituals are not being performed strictly as per the
particular sastra governing the temple and the sanctity of the religious
rituals as per the custom and usage is not being preserved. The Supreme
Court had appreciated the need to preserve the customs and usage with
a view to protect the sanctity of religious rituals in I.A.No. 7 in W.P.(C) No.
638 of 1987 and I.A. No. 3 in transfer case No. 170 of 1987.
The committee further recommends that as and when the present
incumbent in the religious staff retires or demits office or otherwise, the
person in their family should be considered on priority basis for filling of
28

that post or allowing him to do the service to preserve the custom and
usage taking into consideration suitably in rendering services apart from
the qualification required. The Government has accepted the
recommendations subject to all other things being equal in competitive
requirement. However the main concern should be to preserve the
customs and usage with a view to protect the sanctity of the religious
rituals. The Government itself has been taking care to preserve the sanctity
of the religious rituals. Nothing more needs to be said in this behalf. It is
accordingly approved.
In order to remedy the situation the Government intends to amend the
Act in order to revive the village temple system, preserve the sanctity of
traditional rituals, customs and usage and provide livelihood to the
Archaka families, Amendments to Sections 34 and 144 are intended to
achieve these objectives. All political parties had unanimously accepted
such amendments in a meeting held on 4-10-2004.

and further converting higher income temples into tourist places, cinema halls

and museums to increase income destroying their religious character through

political trust boards is in violation of Sec 3 read with Sec 7 of The Places of

Worship (Special Provisions Act, 1991) which reads as follows

Sec 3. Bar on conversion of places of worship :- No person shall convert


any place of worship of any religious denomination or any section thereof
into a place of worship of a different section of the same religious
denomination or of a different religious denomination or any section
thereof.

Sec 7. Act to override other enactments :- The provisions of this Act shall
have effect notwithstanding anything inconsistent therewith containted
in any other law for the time being in force or any instrument having
effect by virtue of any law other than this Act.

In summary the Andhra Pradesh Religious Charitable and Endowments Act as

amended through Act 8 of 2014 in effect is in violation of Art 13(2), Art 14, Art

15(1), Art 19(1)(g), Art 21, Art 25, Art 26, Art 27 and Art 31A(1)(b) , Art 38(1) and
29

Art 51A(f) and also in violation of Sec 3 read with Sec 7 of The Places of Worship

(Special Provisions Act, 1991) and needs to be struck down by this Hon’ble Court.

9.9 In many of the temples there are founder trustees/hereditary trustee who

are heading the trust board. The rights of the founder trustee are generically

different from that of a trustee appointed by the Government under Section 15.

Trustee appointed by the Government is an agent of the Government and has

no independent right of other than his appointment and cannot enter upon or

tread into the arena of religious administration. Whereas, a founder trustee or a

hereditary trustee has a right arising out of the creation of the temple through

an instrument either a trust deed or a munthakab such as inam etc to administer

the temple both in the arena of secular as well as religious administration. In that

view of matter the Founder/hereditary trustee is beyond the powers of the

Government as it can regulate their activities only to the extent of secular

administration. Therefore the Government cannot interfere with the tenure or

holding of office of founder hereditary trustees. This right is traceable to Art 25

of the Constitution and not to Act 30/87. Consequently the action of the

Government and State Legislature to administer or regulate the activity of

founder hereditary trustee through operation of Andhra Pradesh Religious

Charitable and Endowments Act as amended through Act 8 of 2014 in effect is

unconstitutional.

9.10 The Petitioner states that he had filed a similar application to intervene

before the Hon’ble Andhra Pradesh High Court through W.P.M.P. No. 40821 of

2014 in W.P.No. 29264 of 2014. The Hon’ble High Court by its order held that

the amendments are void and allowed the said W.P. No. 29264 of 2014.

Consequently the Hon'ble High Court did not pass any order in W.P.M.P. 40821

of 2014 filed by the petitioner herein.


30

9.11 In the intervener application filed before the Hon’ble Andhra Pradesh

High Court the Petitioner had also articulated the fact about the pending Writ

Petition in this Hon’ble Court as follows :-

The Act in effect has also been challenged in the Supreme Court in the
pending WP 476 of 2012 in Swamy Dayananda Saraswathi and Others vs
State of Tamil Nadu, State of AP and State of Pondicherry where several
sections including Sec 15 has been challenged and a notice has been
served to the Government. The Government without replying to the said
notice has gone ahead with this amendment.

In summary the Andhra Pradesh Charitable and Hindu Religious


Institutions and Endowments Act as amended through Act 8 of 2014 in
effect is in violation of Art 13(2), Art 14, Art 15(1), Art 19(1)(g), Art 21, Art
25, Art 26, Art 27 and Art 31A(1)(b) , Art 38(1) and Art 51A(f) and also in
violation of Sec 3 read with Sec 7 of The Places of Worship (Special
Provisions Act, 1991) and needs to be struck down by this Hon’ble Court.

9.12 The Petitioner also brings to the notice of this Hon’ble Court the Book

titled ‘GOVERNMENT RULES HINDU TEMPLES’ with foreword by Justice M.

Rama Jois former Chief Justice of Panjab and Haryana High Court based on an

extensive research substantiating a number of contentions of the Petitioner as

Exhibit-B. In the opinion of the Petitioner the recommendations made in this

Book after a thorough study will enable this Hon’ble Court to recognize the

unconstitutionality of the challenged Endowments Acts and to fashion suitable

relief in this petition where petitioners are seeking a new legal and

organizational structure ensuring governance of temples and other religious

places to protect our temples and religious institutions from Governmentization

and commercialization, which may lead to destroying the purpose for which the

temples have been established. The Book whose coverpage is inspired by the

supreme sacrifice of Shri Bheemasena Chary has the following in its preface. “It
31

is important that the warning given by Shri Nani Palkhivala to the Supreme

Court continues to ring in our ears “Under the pretext of social reform the State

cannot reform a religion out of existence”. The sound of the bell of the Alampur

temple (Yoga Narasimha Swamy Temple Alampur Mahabubnagar District now

in Telangana State) on which Shri Bheemasena Chary, the Archaka of Alampur

temple sacrificed his life should also continue to ring in ourears for ages to

come”. The supreme sacrifice of the Archaka Shri Bheemasena Chary triggered

a grassroot movement in the State of Andhra Pradesh resulting in key

amendments to the Act through a Select Committee of the Legislature and till

date this amendment is not implemented

10. The petitioner states that Andhra Pradesh Government through

G.O.Ms.No 76 Revenue (Endowments I) Department dated 16th February 2017

has acknowledged the undue delay in implementing the orders of this Hon’ble

Court for over two decades and also implementation of the provisions of the

amended Act 33 of 2007 of over a decade which has made traditional archaka

families extinct in the State leading to virtual closure of temples as

acknowledged in the Government’s Statement of Objects and Reasons of

amendment Act 33 of 2007. The relevant portion of the said G.O. is given below:

“ …….. In pursuance of the directions of the Hon’ble Supreme Court


as well as a consequence of the amendment to the Andhra Pradesh
Charitable and Hindu Religious Institutions and Endowments Act
1987 (incorporation of sub-section (3) to Section 34 and sub-section
(4) to Section 35 and two provisos to Section 144), the services
rendered by hereditary archakas has been recognised and framing
of a separate set of rules for hereditary archakas has become
necessary. As a result of these rules, the traditional Hindu Temple
System will be preserved especially in small village temples.
2. Accordingly, the Government of Andhra Pradesh which is a
sacred trusty of the temples in the State by virtue of Endowments
Act, has decided to frame “The Andhra Pradesh Charitable and
32

Hindu Religious Institutions and Endowments Hereditary Archakas


Qualifications and Emoluments Rules,
2017.
3. The following notification will be published in an Extra-
ordinary issue of the Andhra Pradesh Gazette, Dated: 18-02-
2017…..”

A true copy of the said G.O.Ms.No 76 Revenue (Endowments I) Department


dated 16.02.2017 is annexed hereto as Annexure-A4

11. The petitioner respectfully submits that it is a sad reflection on the way the

Government machinery is functioning and the admitted lack of priority that it

had demonstrated hitherto towards the administration of Hindu Temples matter

that even to date the final notification of the above Rules has not been issued

even though over 6 months have elapsed after the preliminary notification

which itself was issued after over a decade.

12. The petitioner states that the Andhra Pradesh Government through

G.O.Ms.No 183 Revenue (Endowments. I) Department dated 25th May 2017 has

acknowledged the gross financial miss-management of Hindu Temples in the

State throwing them into financial doldrums. The G.O. inter-alia states:

“…..It is brought to the notice of the Government that some


Administrative Authorities while fixing cadre strength to
Devasthanams and while giving promotions, extension of P.R.C’s to
the Devasthanam staff are resorting to wrong practices thereby
throwing the temples into financial doldrums and causing havoc in
the temple administration. Even though the Rule position is clear
that while fixing up cadre strength, sufficiency of workload and
paying capacity of the institution, i.e., establishment charges shall
not exceed 30% of the assessable income should be the criterion,
some of the administrative authorities are acting in total derogation
of Act / Rule provisions.
33

2. A Hindu temple is a traditional religious institution which


is being administered through the Government in good faith for
the benefit of the Hindu populace. All the Endowments officials
should know that temples do not get any Government grants for
their survival. The temple cannot even levy any tax and
compulsorily collect revenue from the people. Temples depend
purely on the willing offerings of Hindu devotees who visit them .
As such, there is no absolute guarantee that temples will be able to
bear the heavy expenditure of employees. It is for this reason that
the statute had already fixed a cap of 30% of the temple assessable
income for meeting its establishment cost. Despite these
restrictions, some of the Endowments officials have in the past
recruited people irregularly and given them promotions,
transferred them from one institution to another, without reference
to the financial condition of such temples and in derogation of Act
and Rules…..”

A true copy of the said G.O.Ms.No 183 Revenue (Endowments. I) Department

dated 25th May 2017 is annexed hereto as Annexure-A5.

13. The petitioner states that the Andhra Pradesh Government through its

Government Order G.O. Rt. No. 743 Revenue (Endowments. II) Department

dated 18th July 2017 has acknowledged the fact that most of the trustees

appointed under the Andhra Pradesh Endowments Act, 1987 are political

appointees who have no understanding of temple administration and temple

culture. The relevant portion of the said G.O. is extracted and given below:

“…. It is brought to the notice of the Government that the Andhra


Pradesh State have 24 thousand temples under the management
of Endowments Department. Most of these temples have got their
own nominated Trust Boards. In many instances persons appointed
as trustees are only political appointees who have no
understanding of the temple administration and temple culture.
The lack of understanding is leading to conflicts between the
nominated trustees and temple officials….”
34

A true copy of the said Government Order G.O. Rt. No. 743 Revenue

(Endowments. II) Department dated 18th July 2017 is annexed hereto as

Annexure-A6.

14. The petitioner states that the Andhra Pradesh Government has rightly

acknowledged the fact in G.O.Ms.No 183 Revenue (Endowments. I) Department

dated 25th May 2017 that it does not have the power to tax the devotees of the

temple. The applicant respectfully submits that the Government is in continuous

administration of temples in violation of the ratio of the judgment of this Hon’ble

Court in the Chidambaram temple case in Civil Appeal No 10620 of 2013 dated

6.1.2014 that such takeover cannot be for an indefinite period as it infringes

fundamental rights of Hindu Devotees to manage and administer their temples.

15. The petitioner further respectfully submits that the continuous control

administration of the temples by the Andhra Pradesh Government by

appointing executive officers is in clear violation of the judgment of the

Constitutional Bench of this Hon’ble Court in S.D. G. Pandara Sannati vs. State of

Madras (1965 AIR 1683) which requires that a case must be made out for the

appointment of an Executive Officer.

16. As per the latest 9 Judge Constitution Bench judgement of this Hon’ble

Court in Justice K.S. Puttasamy and others vs Union of India the State

Government by its continuous control and interference in the administration of

Hindu Temples is in violation of the right to privacy of the Hindu devotees

protected by Art 21 read with Art 25 and Art 26.

“Ex facie, privacy is essential to the exercise of freedom of conscience

and the right to profess, practice and propagate religion vide Article
35

25. The further right of every religious denomination to maintain

institutions for religious and charitable purposes, to manage its own

affairs and to own and administer property acquired for such

purposes vide Article 26 also requires privacy, in the sense of non-

interference from the state.”

17. The Andhra Pradesh Government appointed Committee on Service Issues

of Temple Employees has in its report after relying on the past judgements of

this Hon’ble Court and the Madras High Court Division Bench states that the

levy on the Devotee towards Endowments Administration Fund can be

considered a fee only when

(1) The levy can be justified as intra vires the State Legislature, only
if it falls within the ambit of Entry 47 read with Entry 28 in List III of
VIIth Schedule of the Constitution.

(2) There should be a quid pro quo basis to justify the levy as a fee.
The co-relation between the fee levied and the services rendered
should appear ex facie the legislative provision. The co-relation
must exist both in the purpose of the levy and the extent of the levy,
that is, the co-relation should be between the actual levy and the
expense incurred by the Government for rendering the services for
which the levy is made.

(3) The services rendered by the Government, which constitute the


quid pro quo for the levy of the fee, must be incidental to a system
of regulation.

(4) That regulation itself must be solely on considerations of public


interests.

(5) That Statutory regulation should not exceed the limits of a


reasonable restriction on the fundamental rights guaranteed by the
Constitution.”
36

18. The petitioner is advised to state that given the current situation it is quite

clear where the Government is in control of the Hindu Temple Administration

in the State of Andhra Pradesh in violation of the ratio in Chidambaram temple

judgement and SDG Pandara Sannati Case read with the above tests more

specifically test no (5) the levy being collected from Hindu devotees towards

Endowments Administration Fund to fund salaries of the Endowments Officials

is a tax on Hindu devotees which is beyond the competence of the State

Government to levy as held by this Hon’ble Court in the Shirur Mutt case

19. The petitioner is further advised to state that if the contribution payable

under section 76 of the Act is a "fee", it may come under entry 47 of the

Concurrent List which deals with " fees" in respect of any of the matters included

in that list. On the other hand, if it is a tax, as this particular tax has not been

provided for in any specific entry in any of the three lists, it could come only

under entry 97 of List I or article 248(1) of the Constitution and in either view the

Union Legislature alone would be competent to legislate upon it. Thus, clearly

in absence of any such law under Art 248(1) enacted by the Parliament, tax is

illegally being levied by the State Government on Hindu Devotees in the name

of fee. The petitioner submits that the Hindu devotees are unconstitutionally

taxed to sustain a department which is in complete control of Hindu Temple

administration and miss-managing its affairs in the name of regulation. The

above situation is not specific only to the State of Andhra Pradesh but a wide

spread mischief across many States.

20. The petitioner respectfully submits that the entire scheme of distribution

of legislative powers under the present Indian Constitution is based on the

Government of India Act 1935. Further so far as the Concurrent List is

concerned, it is desirable to quote what the Joint Committee on Indian


37

Constitutional Reforms said, with reference to the corresponding list, as

contemplated in the proposals that led to Act of 1935 :- [Joint Committee on

Indian Constitutional Reforms (1934) pages 30-31, para 51 quoted in Mr Justice

E.S. Venkataramiah and P.M. Bakshi Indian Fedralism (1992) Pg 85 Para 7.13]

“Experience has shown, both in India and elsewhere, that there are
certain matters which cannot be allocated exclusively either to a
central or to a Provincial legislature and for which, though it is often
desirable that provincial legislation should make provision, it is
equally necessary that the central legislature should also have a
legislative jurisdiction enable it, in some cases to secure uniformity
in the main principles of law throughout the country, in others, to
guide and encourage provincial effort and in others, again, to
provide remedies for mischief arising in the provincial sphere, but
extending, or liable to extend beyond the boundaries of a single
province”.

21. The petitioner states that when the Union Government intervened, and

argued forcefully that the levy on Hindu Religious Institutions is only a fee during

the arguments in the Shirur Mutt case through the Office of the Attorney

General; It unfortunately failed in its constitutional duty for several decades to

monitor how the State Governments are enforcing the provisions of the Act

causing irreparable damage to the Hindu Religious Institutions across the

Country. On the one hand due to gross miss-management, due income has not

been realized from the properties of the Hindu temples and endowments and

this is a very serious blow to the fundamental right to practice and propagate

the tenets and the principles of religious denominations to one of which

invariably the temples and endowments belong.

22. The petitioner respectfully submits that the State Government

unconstitutionally levies the administrative and audit tax in colorable exercise of

power by ingeniously calling it a fee on contributions made by the Hindu


38

Devotees in the form of Hundi offerings, pure donations of cash or through

bank, archana, abhisheka or darshan tickets, which have nothing to do with

Government administration of temples. Government cannot, by any stretch of

imagination, claim that the contributions and donations received by the temples

are only through their services as administrators.

PRAYER

For the foregoing reasons, the petitioner most respectfully prays that this

Hon’ble Court may be pleased to

(I) permit petitioner to intervene in in the above writ petition and also

permit him to address the grounds raised in the above application and

(II) pass such further order or other orders as this Hon’ble Court may deem

fit and proper in the facts and circumstances of the case.

New Delhi Drawn & filed by

Dated

(V. RAMASUBRAMANIAN)