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Judgment
K. Chandru, J.—Heard both sides. This writ petition came to be posted on being specially ordered by the Hon''ble Chief Justice vide order
dated 22.11.2012. The questions that arise for consideration is whether the show cause notice dated 11.10.2012 issued by the Assistant
Commissioner, Hindu Religious & Charitable Endowment Department, Tiruvannamalai is without jurisdiction? and whether the petitioner can be
brought within the definition of the term ""religious institution"" in terms of Section 6(18) of the Tamil Nadu Hindu Religious and Charitable
Endowments Act, 1959?
The petitioner is the Nithyananda Dhyanapeetam, represented by its Manager of Tiruvannamalai Branch. It is stated by the petitioner Trust that
it was established by the deed of Trust, dated 11.08.2005 registered with the authorities at Karnataka State. It is having its headquarters at Bidadi,
Ramnagara District, Karnataka State. The trust was founded by one A.V. Gnanaprakasam, being the author and settlor of Nityananda
Dhyanapeetam. By the deed of trust, dated 11.08.2005, Paramahamsa Sri. Nithyananda Swami was made as the sole trustee. The trust is a public
charitable trust. It has also been registered with the Income Tax Department at Bangalore u/s 12AA(1)(b)(i) of the Income Tax Act, 1961. It has
also got tax deduction account number as per the provisions of the Income Tax Act.
On 03.04.2008, one B.S. Soundararajan, a resident of Vengikal Village, Tiruvannamalai District had donated an extent of 2.83 acres (S.No.
152/3A - 2 acres and S.NO. 152/A - 83 cents) in Adiannamalai village by way of a gift deed in favour of Sri. Nithyananda Swami, which was
also registered with the Joint Sub Registrar-II, Tiruvannamalai District under gift deed No. 3899 of 2008. Subsequently, the lands were taken over
by Sri. Nithyananda Swami. He has been paying the electricity charges and the supply stands in the name of Sri. Nithyananda Swami. The revenue
entries have also been mutated accordingly. Patta for the said land also stands in the name of Sri. Nithyananda Swami. On 09.04.2008, Sri.
Nithyananda Swami had entered into an agreement of lease with Nithyananda Dhyanapeetam (petitioner trust). The lease was for a period of 15
years starting from 09.04.2008 to 08.04.2023. The monthly rent of Rs. 1000/- was fixed for the first five years and it was to be increased to Rs.
1500/- for the next five years and thereafter Rs. 2000/- per month for the last five years ending upto 09.04.2023. The trust was given power to
have its construction in the lease land. It was further indicated that any construction done by the trust right from the commencement of the work will
be the property of the lessor Sri. Nithyananda Swami. Upon completion of the construction, the lessee, i.e., the trust, has only the right to be a
tenant for the period of 15 years subject to the payment of rent and other terms and conditions.
It was further stated that on 19.6.2012, the headquarters of the trust was shifted to Tiruvannamalai on a trial basis. Subsequently, on 17.8.2012,
it was shifted back to Bidadi at Karnataka State. The objects of the trust was set out in the trust deed and that it contained as many as 24 items.
For the purpose of the case, it is necessary to extract the objects (a) and (x), which reads as follows:
(a) To establish, develop, maintain and grant in kind to spiritual healing & Research centers, hospitals, medical schools, nursing institutions and such
other similar charitable institution in India for the benefit and use of the general public irrespective of caste, creed and religion.
(x) And generally to do such other Acts, Things and/or deeds as may be necessary, conducive or incidental or ancillary to the attainment of all or
any of the main objects (i.e.) the above said objects.
Provided that
(i) The objects of the Trust stated above shall not be restricted to caste, creed, community or sect or religion. In other words, benefits of the Trust
shall be open to all irrespective of caste, creed, religion or sex.
(ii) The objects and the activities of the Trust shall be limited to India and
(iii) The objects of the Trust shall not be carried on with profit motive so long as the prohibition for the same exists under the provisions of the
Income Tax Act, 1961.
(emphasis added)
The affairs of the trust was directly conducted by the Board of Trustees and it shall be nominated by the sole trustee, i.e., Sri. Nithyananda
Swami. It was further stated that during the month of August, 2012, the petitioner Trust had decided to modify and renovate its entire premises at
Tiruvannamalai with a specific architectural plan. They have also called for quotations from the contractors and that the renovation work has been
commenced. While so, the third respondent, claiming to have acted on the representation given by one C.M. Sivababu. It was alleged that he had
visited the Nithyananda Dhyanapeetam on 27.09.2012 at 6.30 p.m., on 05.10.2012 at 1.00 p.m. and on 06.10.2012 at 7.30 a.m. and made a
report dated 06.10.2012 to the second respondent. Acting upon the said report, the second respondent had issued the show cause notice dated
11.10.2012 (impugned in the W.P.) asking the petitioner trust as to why Nithyananda Dhyanapeetam should not be brought under the direct
control of the HR&CE Department and that they were asked to explain within 15 days.
Within 4 days from the date of issuance of the show cause notice, the Manager of the petitioner trust and founder of the Trust Sri. Nithyananda
Swami have received Caveat petitions lodged by the second respondent with the District and Sessions Judge, Tiruvannamalai, Sub Court and
Munsif Court. This was apprehending that the trust may move the civil court against the action of the respondents department. Immediately upon
receipt of the show cause notice, the Manager of the petitioner trust sent a letter stating that the matter has been referred to their headquarters and
that after getting a reply, he may revert to them. Since the show cause notice had referred to the report of the third respondent, Inspector, a
request has also been made to give a copy of the inspection report, which formed foundation for the show cause notice. Since there was no reply
forthcoming, the petitioner trust moved this court with this writ petition seeking to challenge the show cause notice dated 11.10.2012.
When the matter came up before this court for admission, the respondents had filed M.P. No. 2 of 2012, seeking to restrain the petitioner trust
from changing, altering any of the nature and character of the institution which existed before the date of filing of the writ petition, i.e., 05.11.2012.
This court had passed an order dated 26.11.2012 stating that such an application was not maintainable and the respondents cannot get any relief in
the writ petition filed by the petitioner trust. But, however, considering the balance of convenience, it was directed that both the petitioner and the
respondents should maintain status quo as on 26.11.2012. Subsequently, a counter affidavit has also been filed by the second respondent on
behalf of all respondents, dated 05.12.2012 together with supporting documents in the form of two typed sets. The petitioner has filed a reply
affidavit, dated 20.1.2013 and also an additional typed set.
The contention of the petitioner was that the petitioner trust is not a religious institution coming within the meaning of section 6(18) of the Tamil
Nadu HR&CE Act. The said definition reads as follows:
[(18)""religious institution"" means a math, temple or specific endowment]
(Emphasis added)
Section 6(18), as set out above, was inserted by Amending Act 4 of 2008 with effect from 14.4.2008. Before the amendment, the definition
religious institution"" u/s 6(18) reads as follows:
[(18)""religious institution"" means a math, temple or specific endowment] and includes.-
(i) a samadhi or brindavan; or
(ii) any other institution established or maintained for a religious purpose.
Explanation.- For the purpose of this clause--
(1)""samadhi"" means a place where the mortal remains of a guru, sadhu or saint is interned and used as a place of public religious worship;
(2) ""brindavan"" means a place established or maintained in memory of a guru, sadhu or saint and used as a place of public religious worship, but
does not include samadhi;]
Therefore, it was contended by the petitioner that the trust cannot be brought under the definition of ""religious charity"" in terms of Section
6(16). In paragraph 3(vi) of the affidavit filed in support of the writ petition, it was averred as follows:
(vi)... the above premises are neither a Temple nor a place of worship or a Hindu Religious Public Institution attracting the jurisdiction and control
of Hindu Religious & Charitable Endowments Act, 1959. As per Sec. 6(16) of the Act, a religious charity means a public charity associated with a
Hindu festival or observance of a religious character, whether connected with a math or temple. But the petitioner is a public charity formed with an
intention of propagating yoga and meditation worldwide. The only festival that is being celebrated is the Jayanthy or Birthday of Swami
Nithyananda, the Founder Trustee. The petitioner is having a Universal meditation centre, where people belonging to all religions, who participate
in the yoga and meditation programs do meditation. No Hindu religious pujas were done in the above premises. The Murthis and Lingas were kept
only for the purpose of private worship of people who participate in the yoga and meditation classes that are conducted there. The public were
allowed to come only for listening to religious discourse (satsang) by Swami Nithyananda in the above premises mostly on full-moon day and other
specified days.
It was also contended that the Trust also cannot come under the term ""temple"" within the meaning of Section 6(20). In respect of the same, in
paragraphs 3(vii) and (viii) of the affidavit, it was averred as follows:
(vii) The petitioner submits that, as per sec. 6(20) of the Act, a temple means a public place of worship and dedicated to or for the benefit of the
Hindu Community or any section thereof as a place of public worship. But, the petitioner''s premises at Thiruvanamalai is not a place of worship for
the Hindu Community or a section thereof. People belonging to all religious such as Christians, Muslims, Hindus etc., are the common beneficiaries
of the petitioner''s trust. There are no restrictions or discrimination on the basis of religion, caste, community for the purpose of beneficiaries of the
trust. Moreover, Swami Nithyananda, the Founder Trustee of the petitioner''s trust is considered to be an incarnation and worshipped by his
devotees and disciples belonging to different religions like Hinduism, Buddhism, Jainism, Christianity, Zoroastrian, Judaism, Cao Dai, Bahia,
Confucianism, Islam, Shinto, etc. and Thiruvannamalai being his place of birth is considered to be sacred by his devotees and disciples. Only of this
purpose, the petitioner is having a Dhyanamandapam (meditation centre) at their premises, so that when his devotees and disciples visit, they would
be able to meditate in his presence. Moreover, on Full moon day, which is sacred for anyone visiting Thiruvannamalai, in order to help the public
who visit there, the petitioner provides annadhanam. This act of the petitioner cannot be considered to be religious one and the petitioner brought
under the purview of the HR &CE Act. Hence, the impugned communication is liable to be quashed.
viii) The petitioner submits that, as a part of fulfilling the objects of the trust, annadaan is offered at our premises and free medical camp is also
conducted on a regular basis. In both above events, anyone, irrespective of their caste, creed, religion can take part. This public service of the
petitioner''s organisation has been misinterpreted in the impugned communication stating that since public are allowed into the premises without any
hindrance, the HR & CE Act is applicable....
The second respondent stated that one C.M. Sivababu sent a petition regarding the functioning of the petitioner institution. On receipt of the
said complaint, it was forwarded to the third respondent being the field officer. He had conducted necessary enquiry and found that it was
necessary to bring the petitioner institution under the fold of the Tamil Nadu HR & CE Act, 1959, so that the department will have an
administration and supervisory control. Since the place was used by Hindu devotees, who throng the institution as a place of Hindu Public religious
worship as of right. The third respondent after making spot visit found that it is necessary to bring the petitioner institution under the ambit of the
Act. From the report, it was found that in the petitioner trust premises, the following features were noted as found in paragraph 5, which reads as
follows:
It is submitted that initially the person who established the Institution has installed and consecrated idols of Hindu Gods, fixed Flex Board to
invite the worshipping Hindu Public to take part in the worship etc., In the said notice board, the Hindu general public are invited to visit the
institution and to get the blessings of (1) 1008 Lingams (2) Nithaynanadeswarar and Nithyanandeswari (3) Valli Deva Sena Sametha Nithyananda
Subramaniaswamy (4) Nithyananda Ganapathy (5) Astalingam (6) Idols representing 27 Nakshtras and (7) Karpakavirusham. It is further
submitted that the notice board states that they are performing annadhanam thrice a day for the benefit of the worshippers.
It was further stated in the impugned order that they are having flag post and during festival times, the flag was also hoisted and it was also tied
with ""Dharpaipul"" (Dharpai grass). Poojas were conducted in the mornings and evenings as per the Hindu religious rites. The devotees are
worshipping the idols without any hindrance on daily basis. Since the Dhyanapeetam is situated adjacent to Girivalam path, the Hindu devotees
without any hindrance go into Dhyanapeetam and worship as a matter of right during the day of Full moon and other days. Even the advertisement
board put up outside showed that devotees will be able to have the darshan of all confluence of Sakthis at the same time. On those special days,
persons from Dhyanapeetam were standing outside the Dhyanapeetam and inviting devotees to come for darshan. On the day of full moon and
other ordinary days, large number of devotees are entering the Dhyanapeetam and are participating in the poojas conducted as per the Hindu
religious rites. In the official website of Dhyanapeetam, donations were called for from devotees and from public and that the method by which
donations can be made was also indicated there. Further it was stated in the website of Dhyanapeetam that thousands of people, poor, guest as
well as Sadhus, who are roaming there and devotees are given food and that donations can be given for such ventures. For conducting ""Gho
Pooja"" (Cow worship), they are demanding payment of 1008 US Dollars. For the poojas performing for Nithyananda Eswarar and Nithyananda
Eswari for Astothram Archanai Rs. 108/-, for Sahasranama Archanai Rs. 308/- and for doing Thrisadai Rs. 1008/- was fixed as fees. Therefore,
the petitioner was directed to furnish the details regarding donations received, bank account numbers and details of Archakas and income and
expenditure statement and the details of Utsavams conducted and the details of Annadanam performed, number of Cows in the Goshala and the
account for maintaining the same and the details of the entire properties, both movables and immovables belonging to the Dhyanapeetam, the
details of gold, silver and other ornaments given to the deity and details of persons who donated the same, the details of cash donations received
and the receipts furnished as well as the details of amount collected for various services rendered. It was stated that since the above facts clearly
shows that it is a religious institution coming u/s 6(18), they were asked to show cause as to why it should not be brought under the purview of the
Tamil Nadu HR & CE Act.
It was also stated that subsequently, the flex board kept outside was removed and they have also attempted to remove all the installed and
consecrated idols of Hindu gods and were attempting to change the nature of the institution. They have also removed the flag post and now are
attempting to install it in metal so as to make it appear that it was not a place of Hindu Public religious worship. They are making material
alterations so as to change the character of the Hindu public temple and also change the nature and character of the religious institution.
As to the nature and character of the petitioner trust, in paragraphs 3(ix) to (xi) of the affidavit, the petitioner trust averred as follows:
(ix) The petitioner submits that, one other fact that the impugned communication mentions is the presence of a Kodimaram in the premises. In fact,
there is a flag post in the petitioner''s property, which is not a Kodimaram as per Agama. As per the Hindu Traditions, the Kodimaram in a Temple
has to be in wood clad with brass and with or without gold coating. A cloth flag with Garuda figure for Vishnu temple (Nandi for Shiva) is hoisted
during the temple festival Brahmostavam. But the flag post in the petitioner''s property is used to fly the flag of Nithyananda Dhyanapeetam
throughout the year, not just during the festival days. Moreover, even as admitted in the impugned communication, the flag post is only made of
iron, hence it cannot be construed to be a Kodimaram that is a part of a Hindu Temple.
(x) The petitioner submits that, the petitioner has branches all over the world. The petitioner acquires stone statutes from various centres and they
are brought to Thiruvannamalai for fine carving and final touches. Later, once the carvings are completed, they are sent to our different centres
situated around the world through their Sacred Arts department. The Nithaynanadeswarar and Eshwari deities were never consecrated. They were
simply placed on peetams and decorated. Arati offering is because of the presence of Nithyananda murti. Evening arati was always done to the
sacred Arunachala hill. The nakshatra deities are also not consecrated. They are placed there and energized to facilitate program participants to
meditate near their corresponding star deity and derive the benefits from it.
(xi) The petitioner humbly submits that, there is archargar as there is no Temple within the premises of the petitioner....
Mr. G. Rajagopal, learned Senior Counsel, contended that the respondents have presumed that the activities of the petitioner trust will attract
the provisions of the Tamil Nadu HR & CE Act. It was on the basis of the such premises, they had issued the show cause notice. In fact, the entire
exercise was initiated at the instance of one C.M. Sivababu, who is known to be a petition writer. There were several complaints pending against
him. In fact, he trespassed into the petitioner''s premises on 2.3.2010. A criminal complaint was registered against him under various provisions of
the IPC as well as under the Tamil Nadu Public Properties Damages Act in Crime No. 177 of 2010. After investigation, a charge sheet was filed
before the Principal Assistant Sessions Judge, Tiruvannamalai and he was tried in S.C.No. 59 of 2011. Though the trial ended in an acquittal by
giving benefit of doubt, a revision petition has been filed before this court in Criminal Revision Case No. 1757 of 2011 and it was admitted on
10.12.2011. The respondents cannot receive the complaint from such a person who had motives against the petitioner trust. The statement
recorded from the said person only shows that there were Hindu idols including 1008 Lingams have been consecrated ad at 6.00 p.m. every day,
Aarthi is performed, in which public are participating. During the special days, the Dhyanapeetam used to invite public. It was based upon these
factors, the third respondent sent his report which formed basis for the show cause notice. He also stated that the stand of the respondents was
inconsistent.
The learned Senior counsel also referred to a judgment of a division bench of this court in Ramanasramam by its secretary G. Sambasiva Rao
and Others Vs. The Commissioner for Hindu Religious and Charitable Endowments, Madras, In that case, the question came up for consideration
was whether Ramanasramam at Tiruvannamalai is a temple as defined u/s 6(17) of the HR&CE Act, 1951. Ramaswami, J., in that case held as
follows:
The evidence in the instant case showed that this institution, is a composite institution and is in accordance with Sri. Ramana Maharishi''s universal
outlook making his Asramam open to devotees of all religious - The contributions came also largely from non Hindus. It stands to commonsense
also that no exclusively Hindu shrine would be an appendage of a cosmopolitan Asramam, and which would have been totally inconsistent with Sri.
Ramana Maharishi''s teachings and life.
Concurring with the said view, Anantanarayanan, J., (as he then was) had observed as follows:
The probabilities are overwhelming that as far as the founder''s message, intentions and outlook are concerned the Mathrubutheswar shrine was
not founded as a Hindu temple, but essentially as a public religious shrine or institution of a universal character. The evidence on record clearly
establishes further that it is not a place of Hindu public religious worship though the forms of puja or archana might be similar to those adopted in
Hindu temples but that it is a shrine in which all who are drawn to the Maharishi''s teachings, whether Hindu, Christian, Parsi or Muslim, have equal
rights of access and to the acquisition of spiritual benefit by prayer or meditation.
In a subsequent judgment in The State of Madras and Another Vs. The Urumu Seshachalam Chettiar Charities and Others, a division bench of
this Court considered the very same provision and held as follows:
It seems clear to us that the very definition of temple in Section 6(17) of the Act postulates the test of exclusiveness. It will not be a temple at all as
defined in Section 6(17) of the Act, if it is not dedicated for the benefit exclusively of the Hindu community or if it is not used as of right exclusively
by the Hindu community. A place of public worship used as of right by members of all communities including the Hindus cannot be a temple as
defined by Section 6(17) much less can it be viewed as a Hindu temple or a Hindu religious endowment. The expressions ''for the benefit of and
''used as of right by the Hindu community'' should, in our opinion have the same significance in relation to charitable endowments as they have in
relation to temples which are religious endowments. They should have the same meaning in construing either Section 6(4) or Section 6(17). In our
opinion, even apart from the prefix ''Hindu'' in relation to public charitable, endowments in section 3, the very definition of charitable endowments
in Section 6(4) postulates the test of exclusiveness. Unless, for example, the benefit of the endowment is confined wholly to Hindus it would not be
a charitable endowment as defined by Section 6(4). The prefix ''Hindu'' to the expression '' public charitable endowment'' in section 3 tends, if
anything, to emphasise that feature. When the benefit of the endowments is made such a decisive feature of the statutory concept of a charitable
endowment by the definition in Section 6(4) of the Act we can see no scope for accepting the contention of the learned Advocate-General, that
who the beneficiaries of the trust are is not determinative of the question what constitutes a Hindu public charitable endowment for purposes of
section 3 of the Act.
The learned Advocate-General submitted that anomalous results might follow if the test of exclusiveness were adopted in determining what
constitutes a Hindu public charitable endowment within the scope of section 3 of the Act. The learned Advocate-General pointed out that normally
no Hindu would contemplate exclusion of members of other communities from, the benefit of the public charity familiarly known as a water pandal,
if he were founding such a public charity. That was given only as an example. Establishment of a water pandal charity may be establishment of a
public charitable endowment. But it is not every public charitable endowment that is brought within the scope of Act XIX of 1951. Every public
charitable endowment founded by a Hindu does not become a Hindu charitable endowment. The mere fact that the founder was a Hindu is not
enough even to make a trust or endowment a charitable endowment as defined by Section 6 (4) of the Act. Certainly it is not enough to make it a
Hindu public charitable endowment. To bring a public charitable endowment within the scope of section 3 of the Act it is necessary to establish
first that it is a Hindu charitable endowment. It will not be a Hindu charitable endowment, if the benefit of the endowment can be shared as of right
by members of the public other than Hindus.
The above judgments of the two division benches were rendered in the context of Section 6(17) of the Tamil Nadu HR&CE Act of 1951.
Subsequently, another division bench in S. Kannan and Others Vs. The All India Sai Satnaj (Registered), after referring to those two judgments
held as follows:
Though the above decision related to a charitable endowment we are of the opinion that the same principle will apply to a religious institution as
well.
In S. Kannan''s case (cited supra), a reference was made to an another judgment of the single bench and in paragraph 17 held as follows:
In Shanmugha Perayyar Vs. State of Madras, to which one of us was a party, the above decisions were referred to and followed and at page
417, it is observed as follows:
Taking it for granted that the founder of the charity was an ancestor of the petitioner and he was a Hindu, it does not follow necessarily from that
fact alone that his intention was to confine the charity to the Hindu wayfarers exclusively. The water pandal charity may be incidental to feeding all
wayfarers. But inasmuch as feeding wayfarers does not appear to have been confined exclusively to the Hindus, the result follows that it will not be
governed by the provisions of Madras Act XIX of 1951.
The learned Senior counsel also submitted that in terms of Section 6(18), defining the term ""religious institution"" either it should be a math or a
temple or a specific endowment. In this case, the petitioner trust is neither a math nor a temple. For the purpose of bringing the activities of the
trust, the respondents have not shown any specific endowment made by the petitioner trust. On the other hand, the fact as found from the trust
deed will clearly show that the activities of the trust was not intended to be confined to any Hindu religious alone and that it is without any caste,
creed or religion, the activities are open to all concerned. In fact, no specific endowment has been made in this case. Sri. Nithyananda Swami may
be the sole trustee of Dhyanapeetam, but insofar as the lands in which the trust is carrying on its activities is concerned, he is the exclusive owner of
the said property. He had only leased out the property for a period of 15 years to the trust. Merely because the sole trustee of the trust as well as
the owner of the property are same, it does not mean the activities are carried out will make it a religious body. It is not the intention of the trust to
confine its activities either to cater to the Hindu religious community alone or that the rituals performed are all confined to Hindu religion. Therefore,
he submitted that the foundation of the show cause notice was without any basis. Since the petitioner trust do not satisfy the definition of Section
6(18), the show cause notice is liable to be set aside.
The learned Advocate General after referring to the averments made in the counter affidavit justified the issuance of the show cause notice.
Thereafter, the learned Advocate General placed reliance upon a judgment of the Supreme Court in Teki Venkata Ratnam and Others Vs. Dy.
Commissioner, Endowment and Others, to contend that the authority under the Tamil Nadu HR&CE Act has power and jurisdiction to enquire
into such matters. But, in that case, there was no dispute that the institution was an Hindu institution covered by the provisions of the Act. The only
question that was considered by the Supreme Court was whether the temple in question was a public temple or private temple? It was in that
context, the Supreme Court held that the Deputy Commissioner under the Andhra Pradesh Charitable and Hindu Religious Institutions and
Endowments Act can go into the question whether the particular temple is private or public? It is not clear as to how the said judgment is of any
assistance for the case of the respondents.
The learned Advocate General also referred to a judgment of a division bench of this court in Pichai alias Chockalingam Pillai Vs. The
Commissioner for Hindu Religious and Charitable Endowments (Administration Department), having his office at Madras-6 and others reported in
Pichai Vs. The Commissioner for Hindu Religious and Charitable Endowments (Administration Department), Madras and Others, . But, in that
case, the division bench had an occasion to consider as to what constitutes ""temple"" u/s 6(20) of the Tamil Nadu HR&CE Act. In paragraph 10,
the division bench considered the import of the definition of the term ""temple"" found u/s 6(20) of the Tamil Nadu HR&CE Act and held that the
definition of ""temple"" is so comprehensive that include any place irrespective of installation of idols or a building or a tower, dwajasthambham or a
stupi. After quoting the passage from the text book written by Bijan Kumar Mukherjea, viz., ""Hindu Law of Religious and Charitable Trust"", the
division bench in paragraph 17 had observed as follows:
It is, therefore, clear from this passage that the idols installed, consecrated and worshipped by the Hindu community represent the supreme
God and none else and only such idols alone are required to be consecrated and installed for worship according to the rites and ceremonies
prescribed by Agama Sastras....
In the present case, as stated by the respondents, idols were not consecrated in terms of Agama sastra. Further, in that judgment, which arose
out of an appeal suit, evidence let in was gone. It was found that for installation of four Nayanmars, the performance of ceremonies such as
pranapratishta or kumbabishekam were not essential. In paragraph 18, the division bench had observed as follows:
18....An endowment can be created by making a dedication pure and simple without any provision for performance of ceremonies.
As noted already, in this case, there is no specific endowment by the petitioner to bring it within the definition of the term found in Sections
6(18) and 6(19) of the Tamil Nadu HR&CE Act.
The learned Advocate General also referred to an unreported judgment of a division bench of this court in W.A.No. 27 of 1981 (V.M.
Vairavan Vs. The State of Tamil Nadu and another), dated 07.07.1987. In that case, the division bench quoted with approval the judgment of
Shanmugha Perayyar Vs. State of Madras, as well as The State of Madras and Another Vs. The Urumu Seshachalam Chettiar Charities and
Others, . After quoting from the judgment in Seshachalam Chettiar Charities''s case, wherein it was held that Section 3 of the HR&CE Act can be
invoked only if the endowment is exclusively for Hindu in character, in paragraph 3, it was observed as follows:
There could be no doubt that if the Charitable Endowment in question is not exclusively for the benefit of the Hindus, it could not be brought
within the provisions of the Act...
The learned Advocate General also referred to an another judgment of a division bench of this court in Inspector/Fit Person, HRandCE,
Arulmighu Sundaresa Gnaniar Koil Cholakadai Street, Dharapuram Vs. Amirthammal and 3 others, 2003 (1) CTC 484 In that case, the question
was whether the particular ""Swami Samadhi"" was a public temple or not. Hence in that context it was held that the dispute can be adjudicated by
the authorities under the HR&CE Act. In all the cases cited, the fundamental question whether the institution is covered by the provisions of the
Act itself was not in doubt.
Admittedly, the activities of the petitioner trust will not make it a Hindu temple in terms of Section 6(20) as is the case of the petitioner. On the
other hand, in the affidavit filed in support of the writ petition, it was clearly stated that idols were not consecrated and they were simply placed on
peedams and are decorated. The evening Arthi was performed only to the sacred Arunachala hill. The Nakshatra deities were also not
consecrated. They were placed there to energize and to facilitate the program participants to meditate near their corresponding star deity. The flag
post (kodimaram) was also not installed as per the Agamas. As per the Hindu Agama tradition, the flag post has to be made in wood clad with
brass and with or without gold coating. The flag post in the petitioner''s property was used to fly the flag of Nithyananda Dhyanapeetam throughout
the year and not during festival days. The flag posts are admittedly made with iron. Therefore, the flag post in the petitioner trust can never be said
to be based on any Agama principle.
The petitioner trust is not a Hindu religious charity. It is a public charitable trust with an intention to propagate Yoga and meditation worldwide.
They are having an universal meditation centre where people belonging to all religions are participating in the Yoga and meditation programs and
they do meditations. The Lingams were placed only for the purpose of private worship of people who participate in Yoga and meditation. The
public are allowed to come for listening to the religious discourse (satsang) by Sri. Nithyananda Swami mostly on the full moon day and other
specified days. The dhyanapeetam is not a place of worship exclusively for the persons belonging to Hindu community or a section thereof. The
people belonging to all religions including Christian and Muslims are common beneficiaries of the trust. The trust makes no restriction or
discrimination on the basis of religion, caste or community. In order to help people who visit the Peedam, the trust provides for Annadanam. Even
it is also not restricted to any particular sect or group.
It must be noted that Article 25 of the Constitution guarantees to every person the freedom of conscience and free profession, practice and
propagation of religion. However, the said right is subject to public order, health and morality. It does not prevent the State from making laws
regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice. But in this case,
the Tamil Nadu HR&CE Act which is referable to restrictions found under Article 25, is confined only to the institution covered by the provisions
of the said Act. Therefore, unless it is proved that it comes within any one of the definitions under the Tamil Nadu HR&CE Act, more particularly
in the present case, the definition u/s 2(18), the question of the department issuing a notice to person or body, who are not covered by the Act, will
not arise. The stand of the respondents was that the premises of the petitioner trust is a ""religious institution"" in terms of section 6(18). As noted
already, the trust is neither math nor temple. Therefore, it is incumbent upon the respondents to prove that it was a specific endowment covered by
the said Act.
The term ""specific endowment"" is also defined u/s 6(19), which reads as follows:
(19)""specific endowment"" means any property or money endowed for the performance of any specific service or charity in a math or temple or for
the performance of any other religious charity, but does not include an inam of the nature described in Explanation (1) to clause (17);
Explanation: omitted
In this case, there is no endowment either in the form of the property or in any other way for the performance of any specific service or charity,
math or temple or performance of any other religious charity. Therefore, the activity of the Nithyananda Dhyanapeedam run by the petitioner trust
cannot be considered to be an Hindu institution, so as to be covered by the provisions of the Tamil Nadu HR&CE Act. In such circumstances, the
intention of the founder of the trust and the contents of the trust deed as well as the preaching of the functions of the trust are relevant
consideration.
The management of Sri. Aurobindo society when it was taken over by a Central Act, the same came to be challenged before the Supreme
Court. The question that was argued was whether the activity of the society belonged to Hindu religion and whether they were entitled to either a
denominational right and the preaching of the Aurobindo can be said to constitute a religion other than Hindu religion. The said matter came to be
decided by the Constitution Bench. By a majority, the Supreme Court upheld the provisions of the Central Act. In doing so, the Supreme Court
went into the constitution of the society and its rules and regulations. It is worthwhile to refer to the said judgment in S.P. Mittal Vs. Union of India
(UOI) and Others, and in paragraphs 106, 120 and 121, it was observed as follows:
Reference was made to Rule 9 of the Rules and Regulations of Sri. Aurobindo Society, which deals with membership of the Society and
provides:
Any person or institution or organisation either in India or abroad who subscribes to the aims and objects of the Society, and whose application
for membership is approved by the Executive Committee, will be member of the Society. The membership is open to people everywhere without
any distinction of nationality, religion, caste, creed or sex.
The only condition for membership is that the person seeking the membership of the Society must subscribe to the aims and objects of the Society.
It was further urged that what is universal cannot be a religious denomination. In order to constitute a separate denomination, there must be
something distinct from another. A denomination, argues the counsel, is one which is different from the other and if the Society was a religious
denomination, then the person seeking admission to the institution would lose his previous religion. He cannot be a member of two religions at one
and the same time. But this is not the position in becoming a member of the Society and Auroville. A religious denomination must necessarily be a
new one and new methodology must be provided for a religion. Substantially, the view taken by Sri. Aurobindo remains a part of the Hindu
philosophy. There may be certain innovations in his philosophy but that would not make it a religion on that account.
It was further contended that a religious denomination must be professed by that body but from the very beginning the Society has eschewed
the word ""religion"" in its constitution. The Society professed to be a scientific research organisation to the donors and got income tax exemption on
the footing that it was not a religious institution. The Society has claimed exemption from income tax u/s 80 for the donors and u/s 35 for itself on
that ground. Ashram Trust was different from Auroville Ashram. The Ashram Trust also applied for income tax exemption and got it on that very
ground. So also Aurobindo Society claimed exemption on the footing that it was not a religious institution and got it. They professed to the
Government also that they were not a religious institution in their application for financial assistance under the Central Scheme of Assistance to
voluntary Hindu organisations.
On the basis of the materials placed before us viz. the Memorandum of Association of the Society, the several applications made by the
Society claiming exemption u/s 35 and Section 80 of the Income Tax Act, the repeated utterings of Sri. Aurobindo and the Mother that the Society
and Auroville were not religious institutions and host of other documents there is no room for doubt that neither the Society nor Auroville constitute
a religious denomination and the teachings of Sri. Aurobindo only represented his philosophy and not a religion.
In the present case, if the same test is applied, it can be seen that the trust deed does not show that it was intended to be created as a Hindu
religious institution. Similarly, the attainment of income tax exemption and various objects set out under the trust deed does not show that it was
intended to be a religious institution. On the other hand, the trust deed specifically open its institution to all persons without caste, creed or religion.
The fact that some Hindu idols are found in the trust will not make it as an Hindu institution, since for its consecration, no Agamas were followed.
Further, mere presence of flag post will not make it as an Hindu religious institution as it was stated that the flag of the Dhyanapeedam was made to
fly on it throughout the year.
Further, the respondents were carried away by the complaint given by one C.M. Sivababu, who has definite motives against the petitioner trust
as averred in the reply affidavit. The third respondent had not collected material particulars of the trust including the trust deed before sending his
report. The fact that the properties are owned by Sri. Nithyananda Swami and not by the Trust. The trust is having plans to put up new
constructions for carrying out its activities as set out in the trust deed. In the absence of any relevant materials, the second respondent had rushed
to issue the show cause notice intending to bring the petitioner''s activities within the definition of Section 6(18), which is uncalled for as there is no
specific endowment for any religious purpose in terms of Section 6(18) read with Section 6(19) of the HR&CE Act, 1959. In the light of the
above factual matrix and the legal precedents, even if it was only a show cause notice, but as it was based upon a non existent foundation, this
court is constrained to interfere with it. Hence the writ petition will stand allowed. The impugned show cause notice stands set aside. No costs.
Consequently, connected miscellaneous petitions stand closed.