Dismissed

S.Srikumar v. The Commissioner

Madras HC24 Aug 2021WP/28733/2014

Case brief

AI extract

What is this about?

This court disposed of a writ petition regarding the renovation of Adi Narayana Perumal Temple. The court held that the matter is subsumed by comprehensive directions issued earlier in a related suo motu PIL concerning heritage conservation and temple preservation.

What did the court decide?

The writ petition was disposed of without granting new remedies, directing the respondents to comply with directions issued in a related suo motu writ petition.

S.Srikumar Vs The Commissioner — Pension and Retirement Benefits | Madras HC (2021)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 24.08.2021

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CORAM

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THE HONOURABLE MR.JUSTICE R.MAHADEVAN

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AND THE HONOURABLE MR.JUSTICE P.D.AUDIKESAVALU

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W.P.No.28733 of 2014

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and W.M.P.Nos.30811 and

30812 of 2017

S.Srikumar

...Petitioner

Vs.

Commissioner, Hindu Religious Charitable Endowments Department, 119, Uthamar Gandhi Salai,

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Nungambakkam,

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Chennai -34.

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Superintending Archaeologist, Archaeological Survey of India,

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Chennai Circle,

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Fort St. George,

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Chennai – 600 009.

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Ministry of Culture, Archaeological Survey of India, Room No.501,

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‘C’ Wing, Shastri Bhawan, New Delhi – 110 155.

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Arulmigu Adhinarayana Perumal Thirukovil, rep.by its Fit Person, Pazhaverkadu – 601 204 Thiruvallur District.

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(R4 impleaded as per the order

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dated 05.07.2016 in MP.No.2 of 2014) ...Respondents

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Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Mandamus, directing the first respondent from carrying out any renovation in Adi Narayana Perumal & Samaya Eswarar Temple in Pazhaverkadu Village and directing the respondents 2 and 3 to take control of the said temples and restore and preserve them.

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For Petitioner : Mr.S.P.Chockalingam For R1 & R4 : Mr.M.Karthikeyan, SGP(HR&CE) For R2 & R3 : Mr.G.Karthikeyan, ASG

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ORDER

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R.MAHADEVAN, J.

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“He who denies heritage, has no heritage” is the famous saying of the renowned poet, Khalil Gibran. The great Tamil poet Avvaiyar said, “Don’t live in a place where there is no temple”. However, the custodians of grand and antique temples and ancient monuments failed to bother about its preservation and conservation. Precisely that is the outcry of the petitioner herein.

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2.The relief sought in this writ petition is to issue a mandamus directing the first respondent / HR&CE Department to carry out the renovation work in Adi Narayanana Perumal and Samaya Eswarar Temple in Pazhaverkadu Village and also directing the respondents 2 and 3 / Archaeological Survey of India to take over the control of the said temple and restore and preserve it.

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3.According to the petitioner, the subject temple viz., Adi Narayana Perumal and Samaya Eswarar Temple, Pazhaverkadu, had not been maintained properly and it was going to be demolished, as per the report published in “Times of India” and “The Hindu”. Because of the continuous negligence on the part of the respondent authorities in maintaining the same, the local residents along with the support of fishermen community and Ramakrishna Mission, cleared the bushes and to some extent, brought back the temple to its original shape. Thereafter, the second respondent -Archaeological Survey of India, who was all along keeping quiet, took over the administration and now, the temple is under the control and administration of the first respondent / HR&CE Department. The petitioner further stated that even though a sum of Rs.52 lakhs had been allotted for the preservation of the Adi Narayana Perumal Temple, the hopes of

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the people that the temple would be renovated, had been demolished on account of the fact that the temple complex had been razed by the first respondent, thus crumbling the edifice of the magnificent Adi Narayana Perumal Temple. The petitioner also stated that before initiating the repair-cum-renovation work, the first respondent has to obtain the opinion of the State Archaeological Department, but they have not done so. Feeling aggrieved, the petitioner has rushed to this court with this writ petition for the relief as stated above.

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4.On 05.11.2014, when the matter was taken up for consideration, this Court has granted an order of interim injunction restraining the respondents from proceeding with the renovation work.

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5.Upon notice, the first respondent filed a detailed counter affidavit, in which it is stated that the Government has announced a policy on the floor of the Legislative Assembly to renovate the historical ancient temples, holy shrines glorified by the hymns of Alwars and Nayanmars on 25.04.2013. Accordingly, the Government has created an honorary post of “Sthapathi” in the cadre of Superintending Engineer, in the Hindu Religious and Charitable Endowments Department and appointed a Departmental Sthapathi, to give his expertise opinion, suggestions relating to Thiruppani works as per the Sculptural and Agama Sastras. An Advisory cum Supervisory Committee (Expert Committee) has also been formed by the Government vide G.O.Ms.No.237, Tourism, Culture and Religious Endowments Department, dated 11.10.2013, appointing six members to the said Committee, considering the need to restore and preserve the murals by specialised works. It is also stated that the appointed Fit Person took charge of Arulmigu Adhi Narayana Perumal temple, only during the fag end of the year 2012 and before his taking charge, the administration of the temple was with the villagers only. Subsequently funds have been allocated and tenders were called for, for the renovation works. Even though initially estimate has been prepared to renovate the temples using cement, after considering the ancient value of the temples, the Commissioner, HR & CE Department advised to prepare the estimate for renovating the temples using combination mortar. The renovation works to be done, have also been listed in the counter. It is also averred that the first respondent is very cautious in preserving the ancient living monuments. With respect to the second limb of the prayer made by the petitioner seeking a direction to the Archaeological Department to take over the control of two temples, it is stated that one individual cannot compel a particular wing of the Government to take a policy decision in a particular manner by approaching this Court. Stating so, this respondent prayed to vacate the interim order granted by this Court.

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6.The learned counsel for the petitioner submitted that Tamil Nadu is a state that is bestowed with 44,000 temples and many of them are millennia old and standing grand till date. Temples are the living symbols of hindu culture and festivities connected thereto make it vibrant and colourful. They are continuing legacy that connects the present with the past and vice versa. However, the heritage of the temples is now-a-days deteriorating not due to any natural calamity or catastrophe, but in the guise of renovation. Adding further, the learned counsel submitted that the main function of the HR&CE Department is to properly administer the movable and immovable properties of the temples and it has no locus standi to interfere with the religious affairs of the same and it has to carry out the renovation works only after obtaining necessary permission from the authority concerned. It is also submitted that the HR&CE Department is not competent and cable of renovating the ancient monument and heritage structures like the subject temple and the same should be handed over to the ASI, which is an expert in the said field and is better equipped and has the resource and wherewithal to restore and preserve the temples.

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7.Mr.G.Karthikeyan, learned counsel for the respondents 2 and 3 submitted that the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (AMASR Act, 1958) was passed by the parliament to provide for the preservation of ancient and historical monuments and archaeological sites and remains of national importance for the regulation of archaeological excavations and for the protection of sculptures, carvings and other like objects; and the provisions of the said AMASR Act and Rules, shall only be applicable to the historical monuments or archaeological sites and remains, which has been notified as of national importance. It is further stated therein that the subject temple viz., Adhinarayana Perumal and Samayeswarar Temple, has not been notified as of national importance by the Archaeological Survey of India and therefore, the responsibility for its protection, preservation and conservation does not lie with ASI. Thus, according to the learned counsel, the protection of the subject temple by the ASI is not feasible as per the provisions of AMASR Act.

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8.Heard the learned Special Government Pleader (HR&CE) appearing for the respondents 1 and 4, who reiterated the averments made in the counter affidavit filed by the department. This court has also perused the materials available on record.

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9.Concededly, the renovation works including the resurrection of damaged idols, pillars, paintings, etc are to be carried out periodically and it is a proven scientific result that the resurrection/renovation decreases the possibility of damage. At this juncture, it is apropos to refer to statement of

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objects and reasons and certain provisions of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, which reads as follows:

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“A large part of small, ancient and dilapidated temples which form part of our rich heritage are lying uncared for: Many of these temples are in ruins: Lack of adequate finance has led to this situation of neglect. It is, therefore proposed to reorganize the Hindu Religious and Charitable Endowments Administration Department by the establishment of Temple Administration Board so as to ensure proper maintenance and administration of the temples besides observance of worship and rituals in the temples.

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The Endeavour is to have a two tier system of administration, namely Temple Administration Board at the apex level and a District committee at a District level. The Chief Minister will be the Chairman ex-officio, of the Temple Administration Board. The overall superintendence and governance of temples including appointment of trustees of temples having an annual income of Rs.1,00,000/- and above are to be vested with the Temple Administration Board and the power to appoint trustees for temples having an annual income of less than Rs.1,00,000/is to be vested with the District Committees. It is also proposed to entrust the powers of the Commissioner, Deputy Commissioner and Assistant commissioner under the Act, except certain powers of judicial nature, etc. with temple administration Board and District Committees, suitably.”

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10.Considering the commonality of the issues involved, this writ petition was heard along with suo motu WP.No.574 of 2015 etc. batch, which were touching upon the protection, maintenance and sustenance of the ancient temples, idols, murals, temple lands and other places / articles of archaeological and historical importance.

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11.Pursuant to the orders passed by this court in suo motu W.P.No.574 of 2015 etc. batch, various developments have been taken place. After deliberations and discussions, a meeting was conducted on 21.10.2016, in which, keeping in mind the cases pending before this Court, the Commissioner, State Archaeological Department, Egmore and Archaeological Survey of India, Chennai Circle have been addressed to send a list of names to form an expanded Committee / Panel to individually visit and offer expert opinion on the proposals of renovations

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from heritage temples under the control of HR&CE Department. Further, a Screening Committee has been suggested in the State and Regional levels to study and approve the proposals submitted for any renovation of temple of heritage value. The HR&CE Department also felt it appropriate to coordinate with UNESCO on the points suggested by this Court. However, they submitted that Heritage Conservation Society and others are filing petitions before this Court with an intention to stall and prevent the various renovation works under the guise of conservation of heritage. It is the duty of the Government to oversee the proposals for carrying out all kinds of repair and renovation works and to give a face lift to the important temples situated in the state and that, the damages caused to the temples were not due to any act of negligence, but only due to the ravage of time beyond the control of the HR&CE Department.

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12.In the interregnum period, for the sake of convenience, this writ petition was delinked from the batch viz., suo motu WP.No.574 of 2015. Having regard to the grievances expressed by the learned counsel for the petitioner about the pathetic condition of the subject temple, this court directed the HR&CE Department to conduct inspection and file a report.

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13.Accordingly, the Joint Commissioner, HR&CE Department, Vellore, after conducting inspection of the subject temple, has filed a report on 13.10.2020, wherein, it is stated that all the structures of the temple are in highly dilapidated condition and thick vegetation like banyan have penetrated deep into the walls of the same and the structures are on the verge of collapse. As regards Adhi Narayana Perumal temple, it is stated that the entrance portion is completely vacant and it cannot be presently assessed how this structure was previously existed and a much damaged wood door has been kept inside the temple. It is also stated that the tenders for the works were sanctioned on 17.07.2014 for Adhi Narayana Perumal Temple and in view of the grant of interim injunction, the preliminary works just commenced, were abandoned. However, presently, various committees are constituted for the renovation work of ancient temples and after getting approval from these committees, the cement work done portions can be safely removed and safety traditional lime mortar can be applied under the guidance of the archaeological experts.

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14.Similarly, the respondents 2 and 3 have also filed a report, upon conducting inspection by the members from UNESCO and INTACH. The said report proceeds to state about the nature of the damages caused to the subject temple, which reads as follows:-

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(i)The entrance of the temple was dismantled

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(ii)Replastering the southern wall of the maha-mandapa and mukha-mandapa has to be done.

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(iii)The mouldings of the adhishtana portion of the garbhagriha had undergone severe weathering and the surface has eroded. The depiction of rafters below the kapota of second tala are camouflaged and not reproduced. The balapurushas along the griva are altogether missing presently. The various statues and the images of gods lost their elegance.

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(iv)The dilapidated northern wall of all the units of the temple is not restored except for the brick masonry filling of the corner of the garbhagriha. It would have been better if they had used the laterite stones itself.

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(v)The internal walls of the entire temple are plastered with cement and the flooring is done in cement mortar. This might have happened a decade or even before.

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(vi)The two axial units are in their original dilapidated condition without any modern intervention. However, the balipitha was numbered perhaps for dismantling.

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(vii)The above-mentioned report also mentions the dismantling of the front portion of the Andal shrine.

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15.It was also brought to the notice of this court by the Commissioner, HR&CE Department, Chennai, through a memo dated 11.01.2021, that vide communication in Na.Ka.No.46395/2014/Y2 dated 21.12.2020 addressed to the Additional Chief Secretary, TC&RE Department, Secretariat, Chennai-9, they sought permission to undertake thiruppani works by the ASI in respect of the ancient heritage temple viz., Arulmigu Adhi Narayana Perumal Temple and Samayeeswarar Temple, Pazhaverkadu, etc. and that, if the permission is granted, request is also made for the required funds to be granted in order to provide the same to the ASI to carry out the renovation works.

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16.In such circumstances, this court in suo motu WP.No.574 of 2015 by order dated 07.06.2021, has extensively dealt with various aspects relating to the temples and its properties, monuments, etc. and given as many as 75 directions to the respondent authorities, including formation of heritage commission, conservation manual, etc. For better appreciation, the relevant paragraphs and directions of the said order are reproduced hereunder:

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“52.As envisaged by the reports filed earlier before this Court and the articles in the

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newspaper, the heritage sites and the places of archaeological importance have to be properly maintained. That apart, the state is to constitute the “Heritage Commission” and “Mamallapuram World Heritage Area Management Authority” and to have a mechanism including a manual for the process of conservation, preservation and maintenance of heritage sites and monuments, the mode of collection and preservation of data, number and nature of members of Commission/Authority/Committee, their qualification and term of office, specific powers, duties and procedures to be followed, etc., which impelled this Court to pass orders, in the light of the materials available on record and the discussion extensively made in the above paragraphs, to the effect that all places of historical importance, whether religious or not have to be taken stock, recovered, maintained and celebrated. To fulfil the above, different wings of the central and state Governments have to act in tandem to protect the ancient monuments of this land, which is one of the treasures that have for long been left in lurch. It is also necessary that representatives from various departments with experts have to be brought together to ensure that not only the monuments are preserved, but also to ensure that appropriate repair works by qualified professionals are carried out to increase the longevity of the places of archaeological or historical importance, temples and monuments.

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54.Lastly, a reference may be made to the decision of the Supreme Court in Mrinalini Padhi v. Union of India [(2018) 7 SCC 785], wherein, it was categorically held that ‘the pilgrimage centres are of religious, social, historical and architectural importance, representing cultural heritage of our country and hence, not only Government, whether state or centre, but also the courts may examine such matter treating it as PIL on the judicial side and issue appropriate direction considering the factual situation of the case’. For brevity, the relevant passage of the said decision is reproduced below:-

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“7. There is no doubt that proper management of pilgrimage centres of great importance is a matter of public interest. These centres are of

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undoubted religious, social, historical and architectural importance, representing cultural heritage of our country. Millions of people visit these centres not only for tourism but also for seeking inspiration for the righteous values and for their well-being. They also make huge offerings and donations for advancement of such values.”

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“20.The issue of difficulties faced by the visitors, exploitative practices, deficiencies in the management, maintenance of hygiene, proper utilization of offerings and protection of assets may require consideration with regard to all Shrines throughout the India, irrespective of religion practiced in such shrines. It cannot be disputed that this aspect is covered by List III Item 28 of the Seventh Schedule to the Constitution of India and there is need to look into this aspect by the Central Government, apart from State Governments.”

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“30.9 Difficulties faced by the visitors, deficiencies in management, maintenance of hygiene, appropriate utilization of offerings and protections of assets with regard to shrines, irrespective of religion is a matter for consideration not only for the State Government, Central Government but also for Courts. Every District Judge throughout India may examine such matters himself or through any court under his jurisdiction and send a report to the concerned High Court so that such report can be treated as PIL on the judicial side and such direction may be issued as may be considered necessary having regard to individual fact situation.”

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55.In the ultimate analysis, this Court is of the firm view that the cultural and heritage value as well as the Archaeological importance of the historical monuments, sites and temples and its properties, have to be conserved, preserved and maintained. As already stated above, this Court has time and again directed the HR&CE Department to take a list of all the temples, maintain the same, retrieval of the temple lands and properties from the encroachers, extent of lands owned by them, occupiers of the same and the arrears of rent/ lease amount to be recovered, make inventory of all idols, jewellery

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and valuables, create strong rooms and computerise and exhibit the same in the website and appoint qualified stapathis from the Government college at Mamallapuram for each District and also other staff and if necessary, get approval for creation of certain posts, like Oduvars, temple artistes, archakas etc. however, the department has not fully complied with the same in true spirit. Further, during the pendency of this suo motu writ petition, despite the order of this Court, the temple structures have been demolished and works have been carried on under the guise of renovation, thereby taking away the originality of the structure. It is also reported to us that the encroachment in Mamallapuram has not been removed. Though there are provisions under the Ancient Monuments and the Archaeological Sites and Remains Act and in the HR & CE Act to take action against the errant officials, the authorities concerned have not endeavoured to do so. Such allegations and complaints would vanish and the demand would subside, if the state and HR&CE Department are diligent, conscious and sensitive to protect the heritage of this land. Thus, having regard to the reports of the UNESCO team and the amicus curiae and also considering the role of this Court in acting as the capacity of parens patriae to protect the historical monuments including temples, idols, antiques, manuscripts, murals, etc., which is the root cause for initiation of this public interest litigation, the following directions are hereby issued to the respondent authorities for strict compliance:

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COMMISSION ON HERITAGE

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(1) The respondents shall establish Mamallapuram World Heritage Area Management Authority to manage and safeguard all the monuments and the same shall be notified within a period of eight (8) weeks from today.

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(2) The respondents shall constitute the Heritage Commission consisting of 17 members within a period of eight (8) weeks from today, which shall act as an advisory body to the Mamallapuram World Heritage Area Management Authority and the Government as well.

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(3) The Heritage Commission shall consist of 17 members including the representatives from Archaeological Survey of India, representatives from the State Archaeological Department, one renowned historian or anthropologist, two representatives of PWD department i.e., one from Building Structural and Conservation Wing and another from Architectural Wing, one representative from the HR&CE Department not below the rank of Joint Commissioner, one Stapathi qualified from the Government College of Architecture and Sculpture, Mamallapuram or any other college in the state with similar objectives, two experts in Agamas and Shilpa Shastras and one chemical analyst. The inclusion of a representative from the UNESCO shall also be taken into consideration. sha

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(4) The Heritage Commission shall identify all the structures, monuments, temples, antiques with historical/archaeological importance within the State of Tamil Nadu, formulate a list with age of such monuments by categorising them within their period group, issue appropriate notification, render periodical advices to the State, supervise the restoration, repair works etc. and maintain the same.

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(5) No structural alteration or repair of any monument / temple / idol / sculpture / murals of which are notified either under the Central Act or the State Act, shall take place without the sanction of the Heritage Commission.

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EXPERT COMMITTEE

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(6) The State shall reconstitute the State Level Expert Committee, consisting of a Structural Expert, Archaeological Expert, Conservation Expert, a qualified Traditional Stapathi preferably from the Government College of Architecture and Sculpture, Mamallapuram, an Expert from history, epigraphy, iconography and Fine arts and Two Agama Experts, besides a representative from HR&CE and PWD Departments. The State Level Expert Committee shall be responsible for carrying out and according sanctions for the repairs/renovations of the temples and archaeological sites, on the recommendation of the District Level Committees.

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(7) The State shall constitute District Level Committees, which will consist of historical expert, qualified stapathis, Architectural Expert, Mural Expert, conservative expert, a representative from HR&CE Department, within a period of eight weeks.

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(8) The Committee shall visit all the temples in their respective District, identify the temples and sculptures which are required to be brought under the State Act and which require immediate attention for repairing and prepare a report that is to be forwarded to the Government for appropriate action under the supervision of the Heritage Commission or the State Level Expert Committee as the case may be.

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(9) The Committee shall meet at least once in every month and conduct periodical inspection of the monuments and temples in line with the objects of the HR&CE Act, Ancient Monuments and Archaeological Sites and Remains Act (Central as well as State Acts) and the Rules framed there under.

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MANUAL

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(10) The Government shall finalise the conservation manual containing the regulations for the functions of the Heritage Commission as well the Mamallapuram World Heritage Area Management Authority and the procedures for conservation, preservation and renovation of heritage and non-heritage temples, monuments and historical sites with the assistance of the officials attached to the State and Central ASI Departments and HR & CE Department, within a period of twelve (12) weeks.

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REPAIRS, ALTERATION, RENOVATION WORKS ETC.

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(19) No structural alteration or repair of any monument, temple or idol or sculpture or murals or paintings which come within the purview and control of the HR&CE Department, shall take place without the sanction of the State Level or District Level Committee and all pending works

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shall forthwith be proceeded further, only after obtaining sanction from the said Committee.

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(20) The District Level Committees must identify the temples in which repair/renovation works have been carried out, wherein cement and white washing has been done detrimental to the original structure, inform the same to the State Level committee or the Commission as the case may be, so as to enable the appropriate authority to redo the work by restoring the originality. Every restoration without altering the form or material must be done after a detailed report in writing supported by adequate photograph and measured by drawing records.

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(21) The Renovation and Conservation Wing for the HR&CE department constituted by the Government, by G.O.(Ms).No.108, TC&RE Department, dated 09.08.2019, should ensure that the members of the committee are trained with scientific / technical knowledge to undertake the works of conservation and should act strictly for the purpose to which it was constituted.

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(22) The HR&CE department shall adopt the scientific technology in the process of documentation, preservation and conservation of heritage temples and its properties and valuables.

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(23) To maintain the quality of ornamental works, the usage of sand blasting for cleaning the buildings, must be avoided and the shortfalls in the repair works done in the temples in violation of Agama and Shilpa shastras as pointed out in the report of the UNESCO team, must be attended to and the original position must be attempted to be restored.

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...”

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17.In the considered view of this court, the relief claimed by the petitioner in this writ petition is covered by the aforesaid directions issued in suo motu writ petition and hence, the same holds good to the facts of the present case as well.

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18.As regards the relief sought in WMP.No.30811 of 2017 to initiate proceedings against the deponent by name D.Valluvan for committing the offence of perjury, it is submitted by the deponent that the renovation work is carried out under the direct supervision of the Commissioner of HR&CE Department and the department is more interested in restoring the old temples in proper manner and hence, he has not committed any offence as alleged by the petitioner. Considering the overall facts and circumstances of the case and also the subsequent development taken place, this Court is of the view that the matter needs not be precipitated further. Accordingly, this miscellaneous petition is closed.

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19.With the above observation, this writ petition stands disposed of, directing the respondents to comply with the directions as issued in the suo motu writ petition in respect of the subject temple also, without causing undue delay. Consequently, connected WMP.Nos.30811 and 30812 2017 are closed. No costs.

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Sd/Assistant Registrar(CS III)

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//True Copy//

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Sub Assistant Registrar

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