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Judgment
K. V. Jayakumar, J.
This Writ Petition is filed under Article 226 of the Constitution of India.
The petitioners state that they are the Acharyas/Thantris of various temples, including the temples under the Travancore Devaswom Board. They are the Chairman and Vice Chairman of the Akhila Thantri Pracharak Sabha. It is stated that the rituals are prescribed by the procedure contemplated in ‘Thantra Samuchayam’ and which is accepted by the Travancore Devaswom Board also. The ‘Thantra Samuchayam’ describes the rituals and its procedure to be followed for the construction of Sree Kovil, installation of deities, installation of flag mast, etc.
It is stated that the rituals for the installation/replacement of the flag mast are to be carried out by the Thantri of that temple. After the said rituals, the ‘Vahanam’ of the deity removed from the top of the old flag mast will be handed over to the Thantri, and the Thantri (Acharyan) has the right to collect the same from the owner (Yajamanan) either as a ‘Dhanam’ (donation) offered to the Brahmin or the same will be melted and will be given to the Thantri. This is the custom and practice followed ever since, and the said custom is protected under law and the Constitution based on ‘Thantra Samuchayam’. The relevant portion of the ‘Thantra Samuchayam’, ‘Shilpa Bhagam’ is produced as Ext.P1.
It is submitted that the Devaswom Boards are considered as the Yajamanan (owner) and the Thantri is the ‘Acharyan’ from time immemorial. In the year 2012, the Thantri Samajam had made a demand before the Travancore Devaswom Board seeking revision of remuneration and financial benefits for the conduct of rituals in the temple by the Thantri and his assistants. Consequently, the 2nd respondent, Board, after hearing the members of the Thantri Samajam, has revised the Dakshina for the Thantri as well as the assistants. Thereafter, the Devaswom Commissioner has issued Ext.P2 circular, ROC No.21620/96/PR dated 17.09.2012. In the said circular, it is stated that the physical objects which were damaged or replaced by a new one shall be considered as the property of the Devaswom.
Challenging Ext.P2 circular, the petitioners have approached this Court seeking the following reliefs :
“i.To issue a writ of Certiorari or other appropriate writ order or direction to call for the records leading to Exhibit P2, and to quash the same to the extent it says while conducting the rituals, if any material objects/metals, having divine sanctity, in whatever for shall be retained by the Devaswom Board themselves while replacing the same.
ii.To issue a writ of Mandamus or other appropriate writ, order or direction, declaring that Ext P2 circular, to that extent it covers the idols or ‘Vahanam’ installed on the top of the flag mast, while replacing the flag mast as a Devaswom asset is incorrect and illegal.
The 2nd respondent, Travancore Devaswom Board, has placed on record a counter affidavit as directed by this Court. In the counter affidavit, it is stated that the disputed circular was issued after considering the contentions raised by the Thantri Samajam. In the said circular, it is stated that the items from which the Chaithanyam of the Devan has been detached by way of Avahanam shall remain the property of the Devaswom. Exts.P3 and P4 communications do not have any authority or binding effect to treat it as a precedent. Ext.P2 circular has an overriding effect over Exts.P3 and P4 communications.
For the sake of effective administration, the Board has issued several rules and orders, and the Devaswom Manual is a codified compilation of such rules and orders. Chapter XI of the Devaswom Manual deals with Thiruvabharanam and Bharanipathrom.
It is further stated in the counter that as per the Devaswom Manual, which is a procedural code, all the valuables, including fixtures such as flag-staffs, bells, Kampivilakku, Tharappuvilakku, etc., are required to be entered in the said register under the appropriate heads.
We have heard the submissions of Sri. S. Krishnamoorthy, the learned counsel for the writ petitioners, Sri. G. Biju, the learned Standing Counsel for the Travancore Devaswom Board, and Sri. K. R. Sunil, the learned Special Government Pleader (Devaswom).
Sri. S. Krishnamoorthy, the learned counsel for the petitioners, submitted that Ext.P2 circular is to be set aside so far as it states that any utensils or vessels having divine sanctity shall be retained by the Board when the same is replaced by another one. According to the petitioners, this is against the customary principles which have to be followed by the Acharyas in the temple. The practice followed from time immemorial is that the Thantris are entitled to receive the replaced items such as Vahanam, idol of the deity installed on the flag mast as ‘Dhanam’. The learned counsel pointed out that the Board cannot change the customary practice which was followed for several decades. According to the learned counsel, even after the issuance of Ext.P2 circular, the Board had continued to follow the customary practice. The learned counsel has referred to the relevant page of Thantra Samuchayam which describes the procedure to be followed for the construction of Sreekovil, installation of deities, installation of flag mast, etc. As per the Thantra Samuchayam, the replacement of the flag mast is to be conducted by the Thantri of that temple. It is stated in the said book that if the old flag mast is replaced with a new one, the Vahanam of the deity, like eagle, bullocks, tiger, horse (Vaji Vahanam), etc., installed on the top of the old flag mast are to be offered to the Thantri (Acharyan). The Thantri has to collect the said Vahanam from the owner (Yajamanan) either as Dhanam (donation) to a Brahmin or the same is to be melted and given to the Thantri. According to the learned counsel, it is a right of the Thantri to get the old Vahanam when it is replaced with a new one as per the Thantra Samuchayam.
The learned counsel would then submit that the customary law, also known as jus non scriptum (unwritten law), arises from practices, traditions and habits of communities that are observed with a sense of legal obligation and are recognised as a binding rule when it gains widespread acceptance and is perpetuated by continuous adherence.
We have carefully considered the submissions advanced and perused the materials placed on record.
The principal contention advanced by the learned counsel for the petitioners is that the provision in Ext.P2 circular stipulating that old metal articles and utensils, which are replaced by new ones, shall be retained as assets of the Board is illegal and unsustainable, being contrary to Verse 34 of the Thantra Samuchayam.
We find that Ext.P2 circular was issued after considering the demands raised by the Thantris and on the basis of the report submitted by the Finance and Accounts Officer. The circular was intended to regulate the Dakshina, Dearness Allowance (DA), Travelling Allowance (TA) and other allowances payable to the Thantris and Parikarmis. Furthermore, Chapter XI of the Devaswom Manual, which deals with Thiruvabharanam and Bharanipathrom, specifically provides for the maintenance of separate registers in respect of all valuables belonging to the Devaswom, including fixtures such as flagstaffs, bells, Kampivilakku, Tharappuvilakku, etc. Rule 3(a) further stipulates that all articles, including jewels, vessels and other items made of gold, silver or Panchaloham, shall be entered in the register under the head 'Thiruvabharanams'.r:
ക്രിയാദികൾക്കുശേഷം ആചാരപരമായി തന്ത്രിക്ക് അവകാശപ്പെട്ടവ കൊണ്ടു പോകുന്നതു സംബന്ധിച്ച്
ക്ഷേത്രങ്ങളിൽ ദേവചൈതന്യം സംക്രമിക്കപ്പെട്ട് ആചരിച്ചു പോരുന്നവയും അങ്ങനെ അല്ലാത്തവയുമായ ഭൗതിക വസ്തുക്കൾ കേടുപാടുകൾ ഉണ്ടാകുമ്പോഴോ ഉയർന്ന നിലവാരത്തിലേക്ക് പരിവർത്തനം ചെയ്യപ്പെടുമ്പോഴോ നിലവിലുള്ളവ ഉപയോഗിക്കാറുണ്ട്.
ഇക്കാര്യം സംബന്ധിച്ച പൂർവകാല നടപടിക്രമങ്ങൾ എന്തു തന്നെയായാലും ഇത്തരത്തിലുള്ള വസ്തുക്കൾ പൊതു സ്വത്തായതിനാൽ ദേവസ്വത്തിന്റെ സ്വത്തായി തന്നെ നിലനിർത്തേണ്ടതാണ്.
The learned counsel appearing for the petitioners has invited the attention of this Court to Verse 34 of the Thantra Samuchayam, Shilpa Bhagam, which reads as follows::
ഉത്പാട്യോക്തവദ്രളബിംബമുപനീയാതോ ബഹിഃ സന്ദേഹേത് ഗോസപ്പിസ്തപിതം തദർഹദഹനേ തദ്രാവം ചേത് ഗുരു: ലൌഹം ചേത് ഗുരവേ സമ്പ്രയതു തത് വിദ്രാവ്യ യജ്വാമവാ ചരിതാ നാളമിദം വിശോധ്യ സുശുഭം തത് കൊതുകം കല്യയേത് (Verse 34)
ഉടഞ്ഞ ബിംബം മരംകൊണ്ടുള്ളതാണെങ്കിൽ തന്ത്രി അത് നെയ്യിൽ മുക്കി ഉചിതമായ വിറകുകൊണ്ടുള്ള അഗ്നിയിൽ ദഹിപ്പിക്കേണ്ടതാകുന്നു. ലോഹബിംബമാണെങ്കിൽ ബ്രാഹ്മണനു ദാനം ചെയ്യണം. അല്ലെങ്കിൽ ഉരുക്കി ശുദ്ധിചെയ്ത് തന്ത്രി അതുകൊണ്ട് കാപ്പ് പണിയിക്കണം.
The main contention advanced by the learned counsel for the petitioners is that the provision in Ext.P2 circular stipulating that old metal articles and utensils, which are replaced by new ones, shall be retained as assets of the Board is illegal and unsustainable, being contrary to Verse 34 of the Thantra Samuchayam.
We find that Ext.P2 circular was issued after considering the demands raised by the Thantris and on the basis of the report submitted by the Finance and Accounts Officer. The circular was intended to regulate the Dakshina, Dearness Allowance (DA), Travelling Allowance (TA) and other allowances payable to the Thantris and Parikarmis. Furthermore, Chapter XI of the Devaswom Manual, which deals with Thiruvabharanam and Bharanipathrom, specifically provides for the maintenance of separate registers in respect of all valuables belonging to the Devaswom, including fixtures such as flagstaffs, bells, Kampivilakku, Tharappuvilakku, etc. Rule 3(a) further stipulates that all articles, including jewels, vessels and other items made of gold, silver or Panchaloham, shall be entered in the register under the head 'Thiruvabharanams'.
In K. Ramalingam and Ors. v. State of Tamil Nadu1, the Apex Court had occasion to analyse the nature of temple property and the role of the State as custodian. It was observed as under:
23.Before turning to the rival contentions, it is useful to recall why property belonging to religious institutions is treated differently from ordinary property. Our country's religious institutions are not merely places of worship, they are, in law and, in fact, repositories of considerable wealth, land, buildings, jewellery and specie, accumulated over centuries through the offerings of ordinary devotees and the endowments of kings and commoners alike, given in the faith that what was dedicated to the deity would remain dedicated to the deity in perpetuity. That wealth, once given, ceases to belong to the donor, to the priest, to the trustee, or to the State; it vests in the deity, and every hand through which it subsequently passes holds it only in trust for the deity and, through the deity, for the community of worshippers it was meant to serve. Every custodian holds it only in trust for the deity and the worshippers it serves.
24.A seven-Judge Bench of this Court in Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1954) 1 SCC 412, held that while Articles 25 and 26 of the Constitution protect religious belief and practice, they do not immunise the secular and economic administration of religious property from regulation by law. The same view was reaffirmed in A.S. Narayana Deekshitulu v. State of Andhra Pradesh(1996) 9 SCC 548, where the administration of temple funds and offices was held to be a secular function distinct from the freedom of worship itself.
The Thantra Samuchayam is undoubtedly an important traditional Sanskrit treatise on Hindu temple Tantra, particularly associated with the Kerala tradition of temple worship and ritual practices. It deals with the practical and doctrinal aspects of temple worship, consecration, installation of deities, rituals, purification, offerings and the responsibilities of the Thantri. It is equally undisputed that, in the Kerala temple tradition, the Thantri occupies a distinct and significant religious position. The Thantri is the principal ritual authority responsible for matters concerning the spiritual and ritual integrity of the temple and its deity.
The question is whether a customary or ritual entitlement of the Thantri under the Thantra Samuchayam can be construed as conferring ownership over property belonging to the deity.
Article 25 of the Constitution guarantees freedom of conscience and the right freely to profess, practise and propagate religion. It provides that, subject to public order, morality, health and the other provisions of Part III of the Constitution, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion. At the same time, Article 25(2)(a) expressly provides that nothing in the Article shall affect the operation of any existing law or prevent the State from making any law regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice.
Thus, the constitutional scheme does not extinguish or disregard religious customs and practices. It recognises and protects religious freedom while making it clear that secular activities associated with religious practice, including the administration and management of religious property, remain subject to constitutional and statutory regulation.
With the advent of the constitutional framework and the enactment of laws governing the administration of Devaswoms, the position of temple functionaries has increasingly been brought within an organised administrative structure. The services rendered by Thantris and other temple functionaries are recognised and regulated, and their remuneration, Dakshina, travelling allowance and other admissible benefits are determined in accordance with the applicable administrative framework. In the case on hand, Ext.P2 circular itself was issued pursuant to a representation submitted by the Akhila Kerala Thantri Samajam seeking enhancement of remuneration and other benefits payable to the Thantris and other temple functionaries.
We are of the considered view that, though the Thantri may exercise authority over the religious and ritual aspects of temple administration, such authority cannot be extended to confer ownership over, or a right to appropriate or dispose of, the assets belonging to the deity. The authority to perform and supervise religious ceremonies must be distinguished from the right to own or deal with the property of the deity. The latter is governed by the applicable statutory and administrative framework, under which the properties and valuables belonging to the deity are required to be duly accounted for, preserved and maintained as Devaswom assets.
In State of Madhya Pradesh v. Pujari Utthan Avam Kalyan Samiti2, the Hon'ble Supreme Court reiterated that a Pujari is essentially a person entrusted with the management of the deity's property and does not acquire any ownership rights over such property merely by virtue of performing religious functions or managing the same. The performance of religious duties or the discharge of responsibilities connected with the management of the deity's property cannot, by itself, confer any proprietary interest in such property.
In State of Orissa v. Shri Jagannath Temple Managing Committee3, the Hon'ble Supreme Court had occasion to consider the distinction between religious activities and secular matters connected with the administration of a temple. The Apex Court observed as follows:
"49.A review of all these judgments goes to show that the consistent view of this Court has been that although the State cannot interfere with freedom of a person to profess, practise and propagate his religion, the State, however, can control the secular matters connected with religion. All the activities, in or connected with a temple are not religious activities. The management of a temple or maintenance of discipline and order inside the temple can be controlled by the State. If any law is passed for taking over the management of a temple it cannot be struck down as violative of Article 25 or Article 26 of the Constitution. The management of the temple is a secular act. The temple authority may also control the activities of various servants of the temple. The disciplinary power over the servants of the temple, including the priests, may be given to the temple committee appointed by the State. The temple committee can decide the quantum and manner of payment of remuneration to the servants. Merely because a system of payment has been prevalent for a number of years, it is no ground for holding that such system must continue for all times. The payment of remuneration to the temple servants was not a religious act but was of purely secular nature."
The principles laid down by the Apex Court above apply on all fours in the present case. The authority of the Thantri is essentially concerned with the religious and ritual affairs of the temple. Such authority deserves due recognition and protection in matters relating to worship, consecration, purification and other religious ceremonies. However, once a property is dedicated to a deity, it acquires the character of property belonging to the deity. The Thantri, merely by virtue of performing religious functions in relation to the deity, does not acquire any proprietary interest in such property. His entitlement to remuneration, Dakshina, travelling allowance and other admissible benefits is governed by the applicable legal and administrative framework. Any additional customary entitlement claimed over the property of the deity must be independently established in accordance with law and cannot be presumed merely on the basis of a ritual prescription contained in the Thantra Samuchayam.
Therefore, while the religious prescriptions contained in the Thantra Samuchayam may be relevant in determining the appropriate ritual procedure to be followed in dealing with damaged or discarded articles associated with temple worship, such prescriptions cannot, without more, be construed as conferring a proprietary right upon the Thantri over articles and valuables belonging to the deity. The religious authority to prescribe or supervise a ritual procedure cannot be equated with a legal right to appropriate the property of the deity.
There is yet another matter. The circular under challenge was issued in the year 2012 and for the last fourteen years the guidelines in the circular are being followed in its letter and spirit. The petitioner has made out any good grounds for interfering with the same.
This writ petition is dismissed.