Nomination of junior and successor upheld.

T.N. Singaravelu, J.

1. This is an appeal against the order of the learned single Judge dismissing W.P. No. 4682 of 1980 filed by the appellant, who is the Pandara Sannathi and Adeena-karthar of Thiruvavaduthurai Adheenam in Thanjavur District. The Head of Tiruvavaduthurai Mutt, hereinafter referred to as the "Head of the Mutt", filed two writ petitions, W.P. No. 4682 of 1980 for a writ of prohibition and, W.P. No. 4683 of 1980 for quashing the impugned notice against the State Government represented by the Secretary and Commissioner to Government for Religious Endowment, first respondent herein. The appellant is the Pandara Sannathi and Adheenawartha of the Mutt, which is a well known Saivite Religious Institution, recognised as a religious institution entitled to protection guaranteed under Article 26 of the Constitution of India. He has stated that as the religious Head and Preceptor he has an absolute right and freedom to initiate, disciples, who are called "Thambirans", under him and to nominate any one of them as his successor in accordance with the usage and custom of the institution and that the said power of nomination of his Junior is a personal right and part and parcel of his exclusive religious function. Since the Head of the Mutt has now become old, he has nominated a successor as the Junior to succeed him. The Junior was duly appointed and ordained on 6th August, 1980, accompanied by the usual rituals and conducting of "Acharya Abishekham". According to the custom and usage of the Mutt, the Junior must be a celibate and it is an office predominantly religious in character. While so, the first respondent through the Commissioner, Hindu Religious and Charitable Endowments Department, hereinafter referred to as the "Commissioner", issued a notice on 8th August, 1980, to the Head of the Mutt questioning the appointment of the successor and complaining that the Junior was not duly qualified and that he is not a fit person to be appointed to that high office. In the impugned notice the Commissioner demanded an explanation from the Head of the Mutt and asked him to show cause why disciplinary action should not be taken against him for appointment of such an ill-deserving person. The Head of the Mutt sent a reply on 13th August, 1980, denying the allegations against the successor and stating that he is a duly qualified man for the post and that the Commissioner cannot question the appointment since it is purely religious in character. The Head of the Mutt then followed it up by filing the two writ petitions stated above, one for prohibition and the other for quashing the notice.

2. The learned single Judge held that the choice of a successor (Junior) is purely an administrative function and not a religious function and that none of the fundamental rights under Article 26 of the Constitution has been violated. Now, the vital point for consideration in this writ appeal is whether the nomination and appointment of a successor by the Head of the Mutt is a religious function as contended by the appellant or is purely a secular act as urged by the respondents.

3. To appreciate this controversy, it is necessary to note the definition of the "Math" as defined in Section 6(13) of the Hindu Religious and Charitable Endowment Act, XXII of 1959, hereinafter referred to as the "Act" for the sake of brevity. Section 6, Sub-section (13) reads as follows:

6(13). "Math" means a Hindu Religious institution with properties attached thereto and presided over by a person, the succession to whose office devolves in accordance with the direction of the founder of the institution or is regulated by usage and-

(i) Whose duty it is to engage himself in imparting religious instruction or rendering spiritual service; or

(ii) Who exercises or claims to exercise spiritual headship over a body of disciples; and includes places of religious worship or instruction which are appurtenant to the institution.

4. It is common ground that the appellant squa