NEW DELHI: In a significant decision to protect ancient temples, the Madras High Court has ordered its immovable properties, including lands can't be sold, mortgaged or exchanged, disregarding the necessity of the institutions, which indisputably, are also a symbol of cultural and historical heritage.
A bench of Justices R Mahadevan and P D Audikesavalu said the government lands are to be first utilised for public purpose before the lands belonging to the temples are touched. The court also said temples trustee should be appointed of those who are of unimpeachable character and showed devotion towards the deity trustees too as they would fall under the definition of ‘public servant’ since they handle public money and property.
"The temple properties cannot be gifted away against the interest of the institution. The intention with which the charities given by the donor cannot be shun away at the pleasure of the government or the Commissioner. The Will of the donor is of paramount importance, which cannot be surpassed at executive pleasure against the interest of the temples," the bench said.
Dealing with the Tamil Nadu government's review plea against its judgement of June 7, 2021 passed in suo motu PIL, the bench maintained the appointment of trustees to the temples cannot be based merely on political will as opportunity must be given to all devotees and the process of selection must be transparent.
"The trustees who play a significant role in the day to-day management of the temple administration, are to be people of impeachable character with devotion towards the deity...The person so appointed proves to be religious and an ardent devotee and that, a mere political connection would not vitiate such appointment," the bench said.
The court also added, it is pertinent to point out that a non-hereditary trustee can occupy a post only for a specific period. However, the existence of the political domination would be evident from the repeated and continuous appointment of same persons as trustees for several years, in different posts of the Board so as to ensure such person continues in the Board would cast a spell of cloud over such appointment and hence, should be avoided.
The court also ordered the State is bound to comply with the provisions of the Minimum Wages Act in respect of the temple employees as it is under constitutional obligation, to ensure a decent living for all the workers and their families. "Right of life includes right to livelihood. Article 7 of the International Covenant on Economic, Social and Cultural Rights 1966, speaks about fair wages and equal remuneration for all workers for work of equal value," the bench said.
During the hearing, the court was informed that it had passed the detailed order on June 07, 2021 in with 75 directions, but, till date, none of the directions are complied with by the review applicants and that, various projects worth about several crores of rupees on renovation of temples and its employees, have been proposed, yet, the same are to be implemented so far.
"The need and necessity to preserve the places of historical importance including temples and forts, have been deliberated and expressed by this court in the original order. The significance of preserving the culture, temple lands, folklore, arts, murals and all the activities related to the temples, though have also been spelled out earlier, at the cost of repetition, it is worth pointing out that the rights, directions and duties guaranteed by the Constitution under Part III, IV and IVA cannot be curtailed by any party including the State. The ancient temples in Tamil Nadu, the most in the country, carry a cultural heritage," the bench said.
The State Government as well as the Hindu Religious and Charitable Endowments Department sought review the orders, including on the appointment of Heritage Commission and audit by the Comptroller and Auditor General of India, for protection of the ancient temples.
The bench said the Constitutional courts are not without powers to issue appropriate directions to the State to amend the rules, if necessary, while dealing with a public interest litigation.
"The intention of this court was to protect the buildings and monuments of historical and cultural heritage including the temples, as indisputably, temples are also a symbol of cultural and historical heritage. The applicants herein after having participated actively, contributed with statistics, during inspections and accepted to protect the temples with heritage value, cannot now be permitted to take a different stand stating that the temples are not covered under the Tamil Nadu Heritage Commission Act, 2012. In any case, this court is of the view that the provisions of the Tamil Nadu Heritage Commission Act, 2012, are wide enough to cover temples. The definitions of 'building', 'heritage building', 'monuments of heritage importance' etc, found in Section 2 of the said Act, are exhaustive to include within its ambit, the temples also," the bench said.
"The temples upon being declared as heritage sites, will be known as a place of historical importance bringing them under the jurisdiction of the Commission for preservation and repairs, which will be an added protection," the bench added.
At the same time, the authority of HR&CE Department in other aspects will not be disturbed and they can co-ordinate with the experts and the Commission. That apart, by declaration of temples as heritage sites, their status as a symbol of culture, will not be disturbed; and that, the temples are protected under Articles 25 and 26 of the Constitution, the bench pointed out.
With regard to plea against audit, the bench said as per Article 149, at the request of the State, the Comptroller and Auditor General can audit the accounts of the State or any department and hence, the conduct of audit at the request of the State, by Comptroller and Auditor General, will not take away any right of the State government's administration. The State can also follow its own mechanism of audit. The audit to be conducted by the office of the Comptroller and Auditor General, is only an addition to the existing system and this Court in exercise of its authority under Article 226 of the Constitution of India, can issue any direction for such audit.
Dealing with issue of alineation of temple properties, including the land, the bench said it is clear that the exchange, sale or mortgage and any lease for a term exceeding five years of any immoveable property is generally null and void.
The exception being the prior sanction of the Commissioner for the necessity or beneficial to the institution. It is pertinent to mention that the word 'necessity' used therein would have to be related to the necessity of the temple or institution and not for the necessity of third parties, the bench added.
"Necessity and beneficial intent being a pre-requisite condition, must be satisfied before the decision to even lease out the property for more than five years. Such a decision must be taken for the rational consideration. Therefore, this court is of the opinion that for alienation of the immovable properties belonging to the religious institutions, all the conditions stipulated in the proviso like publication, calling for objections and previous sanction from the Government and explanation to Section 34 of the HR&CE Act have to be scrupulously followed and it has to be established that such alienation is beneficial to the interest of the temple or institution and that, the alienation is the only option to ensure that the activities of temples including performance of rituals will be disturbed, if the property is not sold. It must also be for necessity or beneficial for the temple or the religious institution," the bench said.
"Before the properties are alienated, the other provisions regarding common good fund, funds of other temples to be used for the preservation and other activities of the other temples, contribution from the public, will have to be taken into consideration. Even thereafter, if there is a requirement, a decision on sale of property can be taken, that too, after following due procedure as contemplated under the HR&CE Act. The government lands are to be first utilized for public purpose before the lands belonging to the temples are touched," the bench clarified.
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