2010 Supreme(Mad) 5087

Madurai Bench of Madras High Court
THE HONOURABLE MS. JUSTICE R. MALA
Chockalingam (now died)
Versus
Nambi Pandiyan & Others
S.A.(MD).No.1075, 176, 646 of 2010 & S.A.S.R.(MD).No.16491 of 2010 & M.P.(MD).No.1 of 2010 in S.A.S.R.(MD).16491 of 2010 & M.P.(MD).Nos.1 of 2009 & 1 of 2010 in S.A.(MD).1075 of 2009
Decided On :Decided On : 29-11-2010

Headnote:I. TAMILNADU HINDU RELIGIOUS ACT, 1959 -

       Suit for declaration on behalf of Saivites that demolition, removal and relocation of Lord Shiva (at Mehendragirinathar Sannadhi, situated on North East of Sanctum Sanctorium of Temple and in front of shrine of Veetrirunda Nambi, to a different place within premises of Arul Azagiya Nambriroyar Temple, Thirukurungudi as illegal and invalid - Suit decreed by trial court - Reversed by 1st appellate court - On second appeal order of 1st appellate court set aside by High Court in second appeal- Affirming decree of trial court, with directions

       2. SUBSTIANTIAL QUESTION OF LAW -

       Whether lower appellate court was right in disposing of 1st appeal without framing proper points for determination under Order 41 Rule 31 of CPC? HELD, In view of several decision of Supreme Court, held, 1st appellate court considered all issues and deliberated on issues framed by trial court, though 1st appellate court did not frame any point for consideration - Judgment and decree of 1st appellatre court, affirmed.

       3. SUBSTIANTIAL QUESTION OF LAW -

       Issue of locus standi of plaintiff to file suit - HELD, plaintiff, having filed suit in representative capacity are competent to file, they being worshippers, in the light of Articles 25 and 26 of Constitution. As already discussed, as the plaintiffs are the worshippers and the right to worship is a civil right, they are entitled to maintain the suit and since the right of the worshippers had been disturbed and objected, they have locus-standi to file the suit. Substantial question of law (ii) is answered in the above terms

       4. SUBSTIANTIAL QUESTION OF LAW - ISSUE III Whether the lower appellate Court is right in holding that as per G.O.(Ms).No.55, dated 8.4.2005, the H.R.& C.E. Department, has ratified the shifting of the Idol of Lord Shiva, when especially the Division Bench of this Court has directed the lower Court to decide the suit, without reference to G.O.(Ms).No.55, dated 8.4.2005? - HELD, the challenge to the said G.O. is pending before this Court in W.P.No.18450 of 2005. In the said order dated 3.10.2005, the Division Bench of this Court has specifically mentioned that, "Therefore, we are not taking up W.P.No.18450/2005 for disposal and instead, direct the Registry to post it before court after O.S.No.288/2004 pending on the file of the learned District Munsif, Nanguneri is disposed of." In such circumstances, the first appellate Court has considered the G.O. and came to the conclusion that the H.R. & C.E. Department has ratified the act of shifting the Shrine of Lord Shiva from the original place to the new place, and the first appellate Court, in paragraphs 60 and 61 of its judgment, came to the conclusion that as per Rule 52 of the Management and Preservation of Properties of Religious Institutions Rules, the G.O. had been passed, giving permission for re-installing the Shrine of Lord Shiva into the new constructed place of the "Third Prakaram of the Temple" as per the decision of the Expert Committee of the Tamil Nadu H.R. & C.E. Department and the permission was accorded in the said G.O. only after the removal of the Shrine. Hence, the first appellate Court committed error in coming to the said conclusion, relying on the said G.O. while disposing of the First Appeals, when admittedly, the challenge to the said G.O. is pending before this Court. Substantial question of law (iii) is answered accordingly.

       5. SUBSTIANTIAL QUESTION OF LAW - ISSUES (IV), (VI), (VII) & (IX) -

       (iv) Whether the lower appellate Court is justified in holding that the shifting of the Idol Lord Shiva was done on the basis of the Deva Prasannam, without any reference to the Agama Saastrams ? (vi) Whether the lower appellate Court is right in holding that the shifting of the Idol of Lord Shiva is correct and it is in accordance with Agama Saastras, without making it clear the relevant Agama Saastras to that effect ? (vii) Whether the lower appellate Court is right in allowing the First Appeal, when admittedly the Idol of Lord Shiva was shifted and the defendants failed to establish that the shifting of Idol of Lord Shiva was in accordance with Agama Saastras or other religious text? (ix) Whether the lower appellate Court is right in placing the burden on the appellants to prove that the shifting of Lord Shiva is against the Agama Saastras ? HELD, if there is conflict "Will" of the Lord as had been expressed by the rival parties through the methods like "Deva Prasannam", the Court has to devolve upon the same and render its judgment. Admittedly, in this case, the Deva Prasannam was conducted only by the Tantric Unni Krishna Panicker, and there is no second person conflicting the views of the said Tantric in the conduct of Deva Prasannam. In such circumstances, I am of the view that the contention that only in accordance with "Deva Prasannam", the Lord Shiva Idol has been shifted, is unacceptable - Moreover, while considering the day-to-day activities of the Temples, only in the Temples of Kerala State, the "Deva Prasannam" was conducted, that too, only for the performance of "Poojas" in the Temples and not for removal or installation of any Deities. Hence first appellate Court has erroneously come to the conclusion that the shifting of the Idol of Lord Shiva was done on the basis of "Deva Prasannam", without any reference to "Agama Saastras". Not only in Thirukurungudi Azhagiya Nambi Temple, but in most of the famous Hindu Temples, the "Agama Saastras" are not being followed, for example, in the Temples of Nataraja Swamy at Chidambaram, Thirumogur Temple, Tiruchendur Subramanya Swamy Temple, Thirukoshtiyur Temple, etc. So, the argument advanced by learned counsel for the defendants that only as per "Deva Prasannam" and without any reference to "Agama Saastras", the Idol of Lord Shiva, was shifted, does not merit acceptance.

       6. SUBSTIANTIAL QUESTION OF LAW - ISSUE (V) -

       Whether the lower appellate Court is right in holding that the first respondent, viz., Jeer, has got powers to make changes, which according to him, is against Agama Saastras ? HELD, As per Rule 52 of the Management and Preservation of Properties of Religious Institutions Rules, 1964, the Jeer has no power to remove the Lord Shiva Idol from the original place of installation.

       7. SUBSTIANTIAL QUESTION OF LAW - ISSUE (VIII) Whether the lower appellate Court is right in rendering the judgment without disposing of the applications filed under Order 1 Rule 8(5) of CPC and Order 1 Rule 10(2) of CPC ? HELD Admittedly, the impleading applications were disposed of simultaneously on the same day the First Appeals were disposed of. The first appellate Court did not consider those impleading applications in proper perspective and it will have a bearing on the disposal of the First Appeals, as the suit has already been filed in a representative capacity and impleading of those parties is necessary or not, has to be decided and finding has to be rendered separately on the said applications and then only, the First Appeals should have been heard and disposed of. Hence, I am of the view that the first appellate Court committed error in disposing of the impleading applications along with the First Appeals. Substantial question of law (viii) is answered accordingly.

       8. FINAL ORDER -

       The Judgment and decree of the first appellate Court are liable to be set aside and that of the trial Court are to be restored. Plaintiffs are entitled to get the declaration that the demolition, removal and re-location of the Lord Shiva/Mahendragirinathar Sannadhi situated on the north-east of Sanctum Sanctorum of the Temple and in front of the Shrine Veetrirundha Nambi, to a different place, within the premises of Arulmlghu Azhagiya Nambirayar Temple, Thirukurungudi, is illegal and invalid. Accordingly the declaration sought for by the plaintiffs, is granted. There will be a direction to defendants 1 to 4 to restore the Lord Shiva Sannadhi, namely Arulmighu Sri Mahendragirinathar, to the original place from where it was removed, within three months from today ordered accordingly.

       Result : Ordered accordingly.