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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.10620  OF 2013

Dr. Subramanian Swamy                    …Appellant

Versus

State of Tamil Nadu & Ors.                      …Respondents

                                                           With   

CIVIL APPEAL NO.10621  OF 2013

Sabhayanagar Temple                    …Appellant

Versus

State of Tamil Nadu & Ors.                      …Respondents

                                                 With   

CIVIL APPEAL NO.10622  OF 2013

T. Sivaraman & Ors.                     …Appellants

Versus

State of Tamil Nadu & Ors.                      …Respondents

J U D G M E N T   

Dr. B. S. CHAUHAN, J.

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1. All  these  appeals  have  been  filed  against  the  impugned  

judgment and order dated 15.9.2009 passed in Writ Appeal No.181 of  

2009 by the High Court of Madras affirming the judgment and order  

dated 2.2.2009 of the learned Single Judge passed in Writ  Petition  

No.18248 of 2006 rejecting the claim of the writ petitioner – Podhu  

Dikshitars to administer the Temple.

In Civil Appeal No. 10620/2013, the appellant has raised the  

issue of violation of the constitutional rights protected under Article  

26  of  the  Constitution  of  India,  1950  (hereinafter  referred  to  as  

‘Constitution’) in relation to the claim by Podhu Dikshitars (Smarthi  

Brahmins)  to  administer  the  properties  of  the  Temple  in  question  

dedicated to Lord Natraja. The same gains further importance as it  

also involves the genesis of such pre-existing rights even prior to the  

commencement of the Constitution and the extent of exercise of State  

control under the statutory provisions of The Madras Hindu Religious  

and Charitable Endowments Act 1951 (hereinafter referred to as the  

‘Act  1951’)  as  well  as  the  Tamil  Nadu  Hindu  Religious  and  

Charitable Endowments Act 1959 (hereinafter referred to as the ‘Act  

1959’).

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Civil Appeal No. 10621/2013 is on behalf of Podhu Dikshitars  

claiming the same relief and Civil Appeal No. 10622/2013 has been  

filed by the appellants supporting the claim of the appellant in Civil  

Appeal No. 10621/2013.   

2. For  convenience  in  addressing  the  parties  and  deciding  the  

appeals, we have taken Civil Appeal No. 10620/2013 as the leading  

appeal. The facts and circumstances giving rise to the appeal are as  

under:

A. That  Sri  Sabhanayagar  Temple  at  Chidambaram  (hereinafter  

referred to as the ‘Temple’) is in existence since times immemorial  

and had been administered for a long time by Podhu Dikshitars (all  

male  married  members  of  the  families  of  Smarthi  Brahmins  who  

claim to have been called for the establishment of the Temple in the  

name of Lord Natraja).   

B. The State of Madras enacted the Madras Hindu Religious and  

Charitable Endowments Act, 1927 (hereinafter referred to as the ‘Act  

1927’),  which  was  repealed  by  the  Act  1951.   A  Notification  

No.G.O.Ms.894 dated 28.8.1951 notifying the Temple to be subjected  

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to the provisions of Chapter VI of the Act 1951 was issued.  The said  

notification enabled the Government to promulgate a Scheme  for the  

management of the Temple.   

C. In  pursuance  to  the  same,  the  Hindu Religious  Endowments  

Board,  Madras  (hereinafter  called  the  ‘Board’)  appointed  an  

Executive Officer  for  the management of  the Temple in 1951 vide  

order dated 28.8.1951 etc.  

D. The Dikshitars, i.e. respondent no.6 and/or their predecessors in  

interest challenged the said orders dated 28.8.1951 and 31.8.1951 by  

filing Writ Petition  nos. 379-380 of 1951 before the Madras High  

Court which were allowed vide judgment and order dated 13.12.1951  

quashing  the  said  orders,  holding  that  the  Dikshitars  constituted  a  

‘religious denomination’ and their position vis-à-vis the Temple was  

analogous to muttadhipati of a mutt; and the orders impugned therein  

were violative of the provisions of Article 26 of the Constitution.

E. Aggrieved, the State of Madras filed appeals before this Court,  

which stood dismissed vide order dated 9.2.1954 as the notification  

was withdrawn by the State-respondents.  After the judgment in the  

aforesaid case as  well  as  in  The Commissioner,  Hindu Religious  

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Endowments, Madras v. Sri Lakshmindra Tirtha Swamiar of Sri  

Shirur Mutt,  AIR 1954 SC 282 (hereinafter referred to as ‘Shirur  

Mutt Case’), the Act 1951 was repealed by the Act 1959. Section 45  

thereof empowers the Statutory Authorities to appoint an Executive  

Officer  to  administer  the  religious  institutions.  However,  certain  

safeguards  have  been  provided  under  various  provisions  including  

Section 107 of the Act 1959.

F. On  31.7.1987,  the  Commissioner  of  religious  endowment  in  

exercise  of  his  power  under  the  Act  1959 appointed  an  Executive  

Officer.  Consequent thereto, the Commissioner HR&CE passed an  

order dated 5.8.1987 defining the duties and powers of the Executive  

Officer, so appointed for the administration of the Temple.

G. Aggrieved,  the respondent  no.6 challenged the said  order  by  

filing Writ  Petition No.7843 of  1987.   The High Court  of  Madras  

granted stay of operation of the said order dated 5.8.1987. However,  

the  writ  petition  stood  dismissed  vide  judgment  and  order  dated  

17.2.1997.

H. Aggrieved, the respondent no.6 preferred Writ Appeal No.145  

of  1997  and  the  High  Court  vide  its  judgment  and  order  dated  

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1.11.2004  disposed  of  the  said  writ  appeal  giving  liberty  to  

respondent  no.6  to  file  a  revision  petition  before  the  Government  

under Section 114 of the Act 1959 as the writ petition had been filed  

without  exhausting  the  statutory  remedies  available  to  the  said  

respondent.    

I. The revision petition was preferred, however, the same stood  

dismissed vide order dated 9.5.2006 rejecting the contention of the  

respondent no.6 that the order dated 5.8.1987 violated respondent’s  

fundamental rights under Article 26 of the Constitution observing that  

by virtue of the operation of law i.e. statutory provisions of Sections  

45 and 107 of the Act 1959, such rights were not available to the  

respondent no.6. In this order, the entire history of the litigation was  

discussed and it was also pointed out that the Executive Officer had  

taken charge of the Temple on 20.3.1997 and had been looking after  

the  management  of  the  Temple  since  then.  The  said  order  also  

revealed that the respondent no.6 could not furnish proper accounts of  

movable and immovable properties of the Temple and recorded the  

following finding of fact:

“The  powers  given  to  the  Executive  Officer,  are  the  administration  of  the  Temple and  its  properties  and  maintain these in a secular manner. Hence, the rights of  

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the petitioners are not at all affected or interfered with, in  any manner whatsoever the aim and reason behind the  appointment of the Executive Officer is not for removing  the  petitioners  who  call  themselves  as  trustees  to  this  Temple.” (Emphasis added)

J. The respondent no.6 preferred Writ Petition No.18248 of 2006  

for setting aside the order dated 9.5.2006 which was dismissed by the  

High Court vide judgment and order dated 2.2.2009 observing that the  

judgment referred to hereinabove in Writ Petition (C) Nos. 379-380 of  

1951 titled Marimuthu Dikshitar v. The State of Madras & Anr.,  

reported in 1952 (1) MLJ 557, wherein it  was held that Dikshitars  

were a ‘religious denomination’, would not operate as res judicata.

K. Aggrieved,  the respondent  no.6 filed Writ  Appeal  No.181 of  

2009. The present appellant Dr. Subramanian Swamy was allowed by  

the High Court to be impleaded as a party. The Writ Appeal has been  

dismissed vide impugned judgment and order dated 15.9.2009.

Hence, these appeals.  

3. The appellant-in-person  has  submitted  that  Article  26  of  the  

Constitution confers certain fundamental rights upon the citizens and  

particularly, on a ‘religious denomination’ which can neither be taken  

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away  nor  abridged.   In  the  instant  case,  the  Dikshitars  had  been  

declared by this Court, in a lis between Dikshitars and the State and  

the  Religious  Endowments  Commissioner,  that  they  were  an  

acknowledged `religious denomination’ and in that capacity they had  

a right to administer the properties of the Temple.  Though in view of  

the provisions of Section 45 read with Section 107 of the Act 1959,  

the State may have a power to regulate the activities of the Temple,  

but  lacks  competence  to  divest  the  Dikshitars  from  their  right  to  

manage  and  administer  the  Temple  and  its  properties.  It  was  

strenuously  contended  that  the  High  Court  committed  an  error  by  

holding  that  the  earlier  judgment  of  the  Division  Bench  in  

Marimuthu  Dikshitar  (Supra) would  not  operate  as  res  judicata.  

Therefore, the appeal deserves to be allowed.

4.  Per  contra,  Shri  Dhruv  Mehta  and  Shri  Colin  Gonsalves,  

learned Senior counsel, and Shri Yogesh Kanna, learned counsel  have  

opposed the appeal contending that no interference is required by this  

court as the High Court has rightly held that the aforesaid judgment of  

the Madras High Court or the judgment of this Court in Shirur Mutt  

case (Supra)  would  not  operate  as  res  judicata even  if  the  earlier  

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dispute  had  been  contested  between  the  same  parties  and  touches  

similar issues, for the reason that Article 26(d) applies only when the  

temple/property  is  owned  and  established  by  the  ‘religious  

denomination’. In the instant case, the Temple is neither owned by  

respondent No. 6, nor established by it.  Thus, the appeal is liable to  

be dismissed.

Shri  Subramonium  Prasad,  learned  Addl.  Advocate  General  

appearing for the State and the Statutory authorities has opposed the  

appeal contending that the Executive Officer has been appointed to  

assist  the Podhu Dikshitars and to work in collaboration with them  

and the said respondent has not been divested of its powers at all, so  

far as the religious matters are concerned. Thus, the matter should be  

examined considering these aspects.  

5. We  have  considered  the  rival  submissions  made  by  learned  

counsel for the parties and perused the record.

6. Before entering into the merits of the case, it may be relevant to  

refer to the relevant statutory provisions.  

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Section 27 of the Act 1959 provides that the trustee would be  

bound  to  obey  all  lawful  orders  issued  by  the  Government  or  the  

statutory authorities.

Section 45 of the Act 1959 provides for appointment and duties  

of Executive Officer and relevant part thereof reads:

“(1) Notwithstanding anything contained in this Act, the  Commissioner may appoint, subject to such conditions as  may be prescribed, an Executive Officer for any religious  institution  other  than a  Math  or  a  specific  endowment  attached to a Math.

(2) The Executive Officer shall exercise such powers and  discharge such duties as may be assigned to him by the  Commissioner.

Provided that only such powers and duties as appertain to  the  administration  of  the  properties  of  the  religious  institutions  referred  to  in  sub-section  (1)  shall  be  assigned to the executive officer.  

              xxx                    xxx                    xxx                  xxx

On the other hand, Section 107 of the Act 1959 provides that  

the Act would not affect the rights guaranteed under Article 26 of the  

Constitution.  It reads:

“Nothing  contained  in  this  Act  shall,  save  as  otherwise provided in Section 106 and in Clause (2) of  Article 25 of the Constitution, be deemed to confer any  power or impose any duty in contravention of the rights  

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conferred on any religious denomination or any Section  thereof by Article 26 of the Constitution.”

Section 116 of the Act 1959 reads as under:

“116.  Power to make rules-

(1) The Government may, by notification, make rules  to carry out the purposes of this Act.

(2) Without  prejudice  to  the  generality  of  the  foregoing power, such rules may provide for-

(i) all matters expressly required or allowed by  this Act to be prescribed;

xx xx xx

(3) All rules made and all  notifications issued under  this Act shall, as soon as possible after they are made or  issued,  be  placed  on  the  table  of  the  Legislative  Assembly and shall be subject to such modifications by  way of amendment or repeal as the Legislative Assembly  may  make  either  in  the  same  session  or  in  the  next  session.”

7. Article 26 of the Constitution provides for freedom to manage  

religious affairs and it reads as under:

“26.  Freedom to  manage  religious  affairs  -  Subject  to  public  order,  morality  and  health,  every  religious  denomination or any section thereof shall have the right –

(a) to establish and maintain institutions for religious  and charitable purposes;  

(b) to manage its own affairs in matters of religion;  

(c)  to  own  and  acquire  movable  and  immovable  property; and  

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(d) to administer  such property in accordance with  law.”  

             (Emphasis added)

8. The word “such” has to be understood in the context it has been  

used.  A Constitution Bench of this Court in Central Bank of India  

v. Ravindra & Ors., AIR 2001 SC 3095 dealt with the word “such”  

and held as under:

“43.  Webster  defines  "such" as "having the particular   quality or character specified; certain, representing the   object as already particularised in terms which are not   mentioned. In New Webster's Dictionary and Thesaurus,   meaning of "such" is given as "of a kind previously or   about to be mentioned or implied; of the same quality as   something just mentioned (used to avoid the repetition of   one word twice in a sentence); of a degree or quantity   stated or implicit; the same as something just mentioned   (used  to  avoid  repetition  of  one  word  twice  in  a   sentence); that part of something just stated or about to   be stated". Thus, generally speaking, the use of the word   "such" as an adjective prefixed to a noun is indicative of   the draftsman's intention that he is assigning the same   meaning  or  characteristic  to  the  noun  as  has  been   previously indicated or that he is referring to something   which has been said before.  This principle has all  the   more  vigorous  application  when  the  two  places   employing  the  same  expression,  at  earlier  place  the   expression having been defined or characterised and at   the latter place having been qualified by use of the word   "such", are situated in close proximity.”

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(See also:  Ombalika Das & Anr. v.  Hulisa Shaw,  AIR 2002 SC  

1685).

9. The aforesaid  provisions  make it  clear  that  the  rights  of  the  

‘denominational  religious  institutions’  are  to  be  preserved  and  

protected from any invasion by the State as guaranteed under Article  

26 of the Constitution, and as statutorily embodied in Section 107 of  

the Act 1959.

10. Undoubtedly, the object and purpose of enacting Article 26 of  

the  Constitution  is  to  protect  the  rights  conferred  therein  on  a  

`religious denomination` or  a section  thereof.  However,  the rights  

conferred under Article 26 are subject to public order, morality and  

health  and  not  subject  to  any  other  provision  of  Part  III  of  the  

Constitution as the limitation has been prescribed by the law makers  

by virtue of Article 25 of the Constitution.   

The  term  ‘religious  denomination’  means  collection  of  

individuals  having a system of belief,  a  common organisation;  and  

designation of a distinct name.  The right to administration of property  

by  a  ‘religious  denomination’  would  stand  on  a  different  footing  

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altogether  from the  right  to  maintain  its  own affairs  in  matters  of  

religion.  (Vide:  Acharya  Maharajshri  Narendra  Prasadji  

Anandprasadji Maharaj etc.etc. v. The State of Gujarat & Ors.,  

AIR 1974  SC 2098;  T.M.A.  Pai  Foundation & Ors.  v.  State  of  

Karnataka &  Ors.,  AIR 2003 SC 355; and  Nallor Marthandam  

Vellalar & Ors. v. Commissioner, Hindu Religious and Charitable  

Endowments & Ors., AIR 2003 SC 4225).

11. The Constitution  Bench  of  this  Court  in  S.  Azeez  Basha &  

Anr. v. Union of India, AIR 1968 SC 662,  while dealing with the  

rights of minority to establish educational institutions, also dealt with  

the provisions of Article 26 of the Constitution and observed that the  

words “establish and maintain” contained in Article 26 (a) must be  

read  conjunctively.   A  ‘religious  denomination’  can  only  claim to  

maintain that institution which has been established by it.  The right to  

maintain institutions would necessarily include the right to administer  

them.  The right under Article 26(a) of the Constitution will only arise  

where the institution is established by a ‘religious denomination’ and  

only in that event, it can claim to maintain it.  While dealing with the  

issue of Aligarh Muslim University, this Court rejected the claim of  

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Muslim community of the right to administer on the ground that it had  

not been established by the Muslim community and, therefore, they  

did not have a right to maintain the university within the meaning of  

Article 26(a) of the Constitution.   

12. In  Khajamian Wakf  Estates  etc.  v.  State  of  Madras  etc.,  

AIR 1971 SC 161, the Constitution Bench of this Court held that the  

religious  denomination  can  own,  acquire  properties  and administer  

them  in  accordance  with  law.   In  case  they  lose  the  property  or  

alienate the same, the right to administer automatically lapses for the  

reason that property ceases to be their property.  Article 26(d) of the  

Constitution  protects  the  rights  of  ‘religious  denomination’  to  

establish and administer the properties as clauses (c) and (d) guarantee  

a fundamental  right to any religious denomination to own, acquire,  

establish and maintain such properties.   

13. In  Sri Sri Sri Lakshamana Yatendrulu & Ors. v. State of  

A.P.  &  Anr., AIR  1996  SC  1414,  this  Court  examined  the  

constitutional  validity  of  some  of  the  provisions  of  the  Andhra  

Pradesh Charitable and Hindu Religious Institutions and Endowments  

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Act 1987. The Court also examined the object of the scheme framed  

under Section 55 of the  said Act and held as under:  

“..That the power of the Commissioner to frame scheme   is not absolute but is conditioned upon reasonable belief   on  the  basis  of  the  report  submitted  by  the  Deputy   Commissioner  and  there  must  be  some  material  on   record  for  entertaining  a  reasonable  belief  that  the   affairs  of  the  Math  and  its  properties  are  being   mismanaged or that funds are misappropriated or that   the  mathadhipathi  grossly  neglected  in  performing  his   duties.  Prior  enquiry  in  that  behalf  is  duly  made  in   accordance  with  the  rules  prescribed  thereunder.  The  members  of  the  committee   so  appointed  shall  be  the   persons  who  are  genuinely  interested  in  the  proper   management of the Math, management of the properties   and  useful  utilization  of  the  funds  for  the  purpose  of   which the endowment is created. Thus,  the paramount   consideration is only proper management of the Math  and utilisation of the funds for the purpose of the Math   as per its customs, usage etc.”                 (Emphasis  added)  

The Court further held:

“Such  a  scheme  can  be  only  to  run  day-to-day   management of the endowment and the committee would   be of supervisory mechanism as overall incharge of the   Math.”                                                    (Emphasis added)

As the Act  1987 did not  provide the duration for  which the  

scheme would remain in force, the court held that “the duration of the  

scheme  thus  framed  may  also  be  specified  either  in  the  original  

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scheme or one upheld with modification, if any, in appeal.” The Court  

held:  

“36. The object of Section 55  appears to be to remedy   mismanagement  of  the  math  or  misutilisation  of  the   funds of the math or neglect in its  management.  The  scheme  envisages  modification  or  its  cancellation   thereof,  which would indicate  that  the scheme is  of  a   temporary nature and duration till the evil, which was  recorded  by  the  Commissioner  after  due  enquiry,  is   remedied or a fit person is nominated as mathadhipathi   and is recognised by the Commissioner. The scheme is   required  to  be  cancelled  as  soon  as  the  nominated   mathadhipathi  assumes  office  and  starts  administering   the  math  and  manages  the  properties  belonging  to,   endowed  or  attached  to  the  math  or  specific   endowment.”                                          (Emphasis added)

Thus, this Court clarified that there cannot be super-session of  

administration in perpetuity. It is a temporary measure till the evil gets  

remedied.  

14. In  the  aforesaid  backdrop,  we  shall  examine  the  present  

appeals.  

The  learned  Single  Judge  while  deciding  Writ  Petition  No.  

18248/2006 examined the case raising the following question:   

“Observations of  the Division Bench in 1952 (1)  MLJ  557 that Podhu Dikshitars are a ‘denomination’ are to be  

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tested in the light of well-settled principles laid down in  various decisions of the Supreme Court.”

The learned Single Judge as well as the Division Bench made it  

a pivotal point while dealing with the case.  

15. The Constitution Bench of this Court in  Shirur Mutt (Supra)  

categorically held that a law which takes away the right to administer  

the  religious  denomination  altogether  and  vests  it  in  any  other  

authority would amount to a violation of right guaranteed in clause (d)  

of Article 26 of the Constitution.  Therefore, the law could not divest  

the administration of religious institution or endowment. However, the  

State may have a general right to regulate the right of administration  

of a religious or charitable institution or endowment and by such a  

law, State may also choose to impose such restrictions whereof as are  

felt  most  acute  and provide a  remedy therefore.  (See also:  Ratilal  

Panachand Gandhi & Ors. v. State of Bombay & Ors., AIR 1954  

SC 388; and Pannalal Bansilal Pitti & Ors. v. State of A.P. & Anr.,  

AIR 1996 SC 1023).

16. The Shirur Mutt case (Supra) had been heard by the Division  

Bench of the Madras High Court alongwith  Marimuthu Dikshitar  

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(Supra), and against both the judgments appeals were preferred before  

this court. However, in the case of respondent no.6, the appeal was  

dismissed  as  the  State  of  Madras  had  withdrawn  the  impugned  

notification,  while  in  Shirur  Mutt case  the  judgment  came  to  be  

delivered wherein this Court held as under:  

“15. As regards Art. 26. the first question is, what is the   precise  meaning  or  connotation  of  the  expression   "religious  denomination"  and  whether  a  Math  could   come within this expression.  The word "denomination"   has been defined in the Oxford Dictionary to mean "a   collection of individuals classed together under the same   name : a religious sect or body having a common faith   and organisation and designated by a distinctive name".   It is well known that the practice of setting up Maths as   centres  of  theological  teaching  was  started  by  Shri   Sankaracharya  and  was  followed  by  various  teachers   since  then.  After  Sankara  came  a  galaxy  of  religious   teachers  and  philosophers  who  founded  the  different   sects and sub sects of the Hindu religion that we find in   India at the present day.

Each one of such sects or sub-sects can certainly   be called a religious denomination, as it is designated by   a distinctive name, --in many cases it  the name of the   founder  ---  and  has  a  common  faith  and  common   spiritual organization. The followers of Ramanuja, who   are known by the name of Shri Vaishnabas, undoubtedly   constitute  a  religious  denomination;  and  so  do  the   followers  of  Madhwacharya  and  other  religious   teachers. It is a fact well established by tradition that the   Udipi  Maths  were  founded  by  Madhwacharya  himself   and  the  trustees  and  the  beneficiaries  of  these  Maths   profess to be followers of that teacher. The High Court   has found that the Math in question is in charge of the   Sivalli  Brahmins  who  constitute  a  Section  of  the   

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followers of Madhwacharya.As Art. 26 contemplates not   merely  a  religious  denomination  but  also  a  Section   thereof, the Math or the spiritual fraternity represented   by it  can legitimately  come within  the purview of  this   Article.

16.  The  other  thing  that  remains  to  be  considered  in   regard to Art. 26 is, what, is the scope of clause (b) of   the  Article  which  speaks  of  management  'of  its  own   affairs  in  matters  of  religion?"  The  language   undoubtedly suggests that there could be other affairs of   a religious denomination or a Section thereof which are   not matter of religion and to which the guarantee given   by this clause would not apply. The question is, where is   the line to be drawn between what are matters of religion   and what are not?

xx xx xx

22. Under  Art.  26(b),  therefore  a  religious   denomination or organization enjoys complete autonomy   in the matter of deciding as to what rites and ceremonies   are essential according to the tenets of the religion they   hold  and  no  outside  authority  has  any  jurisdiction  to   interfere with their decision in such matters.”

This Court upheld the validity of Section 58 of the Act 1951  

which  had  been  struck  down  by  the  Division  Bench  which  is  

analogous to Section 64 of the Act 1959.   

17. In view of the provisions of Sections 44 and 45(2) of the Act  

1959, the State Government can regulate the secular activities without  

interfering with the religious activities.  

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18. The  issues  involved  herein  are  as  to  whether  Dikshitars  

constitute a ‘religious denomination’ and whether they have a right to  

participate  in  the  administration  of  the  Temple.   In  fact,  both  the  

issues  stood  finally  determined  by  the  High  Court  in  the  earlier  

judgment of  Marimuthu Dikhsitars (Supra) referred to hereinabove  

and, thus, doctrine of res judicata is applicable in full force.  

19. The Division Bench of Madras High Court while deciding the  

dispute earlier in Marimuthu Dikshitar (Supra), traced the history of  

Dikshitars and examined their rights, etc.  The Court concluded:  

“Looking at it from the point of view, whether the Podu   Dikshitars are a denomination, and whether their right   as a denomination is to any extent infringed within the   meaning of Article 26, it seems to us that it is a clear   case,  in  which  it  can  safely  be  said  that  the  Podu  Dikshitars who  are  Smartha  Brahmins,  form  and   constitute a religious denomination or in any event, a   section thereof.  They are even a closed body, because   no  other  Smartha  Brahmin  who  is  not  a  Dikshitar  is   entitled  to  participate  in  the  administration or  in  the  worship or in the services to God.  It is their exclusive   and  sole  privilege  which  has  been  recognized  and   established for over several centuries.

In  the  case  of  Sri  Sabhanayakar  Temple  at   Chidambaram,  with  which  we  are  concerned  in  this   petition,  it  should  be  clear  from what  we  have  stated   earlier  in  this  judgment,  that  the  position  of  the   

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Dikshitars, labelled trustees of this Temple, is virtually   analogous to that of a  Matathipathi of a Mutt,  except   that the Podu Dikshitars of this Temple, functioning as   trustees,  will  not  have  the  same  dominion  over  the   income  of  the  properties  of  the  Temple  which  the   Matathipathi enjoys in relation to the income from the   Mutt and its properties.  Therefore, the sections which   we  held  ultra  vires  in  relation  to  Mutts  and   Matathipathis  will  also  be  ultra  vires  the  State   Legislature  in  relation  to  Sri  Sabhanayakar  Temple,   Chidambaram and the Podu Dikshitars who have the   right to administer the affairs and the properties of the   Temple.  As we have already pointed out even more than   the case of the Shivalli Brahmins, it can be asserted that   the  Dikshitars  of  Chidambaram  form  a  religious   denomination  within  the  meaning  of  Article  26  of  the   Constitution.

We certify under Article 132 of the Constitution that it is   a fit case for appeal to the Supreme Court.  Notification   quashed.”                                               (Emphasis added)  

20. On the basis of the certificate of fitness, the State of Madras  

preferred Civil Appeal No.39 of 1953 before this Court against the  

said judgment and order of the Madras High Court, which was heard  

by the Constitution Bench of this Court on 9.2.1954.  However, the  

said  appeal  stood  dismissed  as  the  State  withdrew the  notification  

impugned therein.  Relevant part of the order runs as under :

“The Appeal and the Civil Miscellaneous Petition above  mentioned being called on for hearing before this Court  on  the  9th day  of  February,  1954  upon  hearing  the  Advocate-General of Madras  on behalf of the Appellants  

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and  counsel  for  the  respondents  and  upon  the  said  advocate-General  appearing  on  behalf  of  the  State  of  Madras agreeing to withdraw the notification G.O. Ms.  No.894 Rural Welfare dated 28.8.1951 published in Fort  St.  George Gazette dated 4.9.1951 in the matter of the  Sabhanayagar  Temple,  Chidambaram,  Chidambaram  Taluk, South Arcot District/the  Temple concerned in this  appeal/this Court doth order that the appeal and the civil  miscellaneous petition above mentioned be and the same  are hereby dismissed.”  

21. It is evident from the judgment of the High Court of Madras,  

which attained finality as the State withdrew the notification, that the  

Court recognised:

a) That  Dikshitars,  who  are  Smarthi  Brahmins,  form  and  

constitute a ‘religious denomination’;

b) Dikshitars  are  entitled  to  participate  in  administration  of  the  

Temple; and

c) It was their exclusive privilege which had been recognised and  

established for over several centuries.  

22. It  is  not  a  case  to  examine  whether  in  the  facts  and  

circumstances of the case, the judgments of this court in various cases  

are required to be followed or the ratio thereof is binding in view of  

the  provisions  of  Article  141 of  the Constitution.   Rather  the  sole  

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question is whether an issue in a case between the same parties, which  

had  been  finally  determined  could  be  negated  relying  upon  

interpretation of law given subsequently in some other cases, and the  

answer  is  in  the  negative.  More  so,  nobody  can  claim  that  the  

fundamental rights can be waived by the person concerned or can be  

taken away by the State under the garb of regulating certain activities.  

23. The  scope  of  application  of  doctrine  of  res  judicata is  in  

question.  

The literal meaning of “res” is “everything that may form an  

object of rights and includes an object, subject-matter or status” and  

“res judicata” literally means “a matter adjudged a thing judicially  

acted upon or decided; a thing or matter settled by judgments”.  “Res  

judicata pro veritate accipitur” is the full maxim which has, over the  

years, shrunk to mere “res judicata”, which means that res judicata is  

accepted for truth.  

24. The  doctrine  contains  the  rule  of  conclusiveness  of  the  

judgment which is based partly on the maxim of Roman jurisprudence  

“interest reipublicae ut sit finis litium” (it concerns the State that there  

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be an end to law suits)  and partly on the maxim “nemo debet  bis   

vexari pro uno et eadem causa” (no man should be vexed twice over  

for the same cause).

Even an erroneous decision on a question of law attracts the  

doctrine of res judicata between the parties to it.  The correctness or  

otherwise of  a judicial  decision  has no bearing upon the question  

whether  or  not  it  operates  as  res  judicata. (Vide:  Shah  Shivraj  

Gopalji v. ED-, Appakadh Ayiassa Bi & Ors., AIR 1949 PC 302;  

and  Mohanlal Goenka v. Benoy Kishna Mukherjee & Ors., AIR  

1953 SC 65).      

25. In Smt. Raj Lakshmi Dasi & Ors. v. Banamali Sen & Ors.,  

AIR 1953 SC 33, this Court  while dealing with the doctrine of  res  

judicata referred  to  and  relied  upon  the  judgment  in  Sheoparsan  

Singh v. Ramnandan Singh, AIR 1916 PC 78 wherein it had been  

observed as under:

“…….. the rule of res judicata, while founded on ancient   precedents,  is  dictated  by  a  wisdom  which  is  for  all   time…..  Though the rule of the Code may be traced to   an  English  source,  it  embodies  a  doctrine  in  no  way   opposed  to  the  spirit  of  the  law as  expounded  by  the   Hindu  commentators.  Vijnanesvara  and  Nilakantha   

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include  the  plea  of  a  former  judgment  among  those   allowed by law, each citing for this purpose the text of   Katyayana,  who  describes  the  plea  thus:  'If  a  person   though  defeated  at  law,  sue  again,  he  should  be   answered, ‘‘you were defeated formerly". This is called   the plea of former judgment.’... And so the application of   the rule by the courts in India should be influenced by no   technical  considerations  of  form,  but  by  matter  of   substance within the limits allowed by law’’

26. This Court in  Satyadhyan Ghosal & Ors. v. Smt. Deorajin  

Debi & Anr., AIR 1960 SC 941 explained the scope of principle of  

res-judicata observing as under:  

“7. The principle of res judicata is based on the need of   giving a finality to judicial decisions. What it says is that   once a res is judicata, it  shall  not be adjudged again.   Primarily it applies as between past litigation and future   litigation, When a matter - whether on a question of fact   or  a  question  of  law -  has  been decided between two   parties  in  one  suit  or  proceeding  and  the  decision  is   final,  either because  no appeal  was taken to  a higher   court or because the appeal was dismissed, or no appeal   lies,  neither  party  will  be  allowed  in  a  future  suit  or   proceeding  between  the  same  parties  to  canvass  the   matter again. This principle of res judicata is embodied   in  relation  to  suits  in  S.  11  of  the  Code  of  Civil   Procedure;  but  even  where  S.  11  does  not  apply,  the   principle of res judicata has been applied by courts for   the purpose of achieving finality in litigation. The result   of this is that the original court as well as any higher   court must in any future litigation proceed on the basis   that the previous decision was correct.”

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A similar view has been re-iterated by this court in Daryao &  

Ors.  v.   The State of U.P. & Ors., AIR 1961 SC 1457;  Greater  

Cochin Development Authority v. Leelamma Valson & Ors., AIR  

2002 SC 952; and Bhanu Kumar Jain v. Archana Kumar & Anr.,  

AIR 2005 SC 626.  

27.  The  Constitution  Bench  of  this  Court  in  Amalgamated  

Coalfields Ltd. & Anr. v. Janapada Sabha Chhindwara & Ors.,  

AIR 1964 SC 1013, considered the issue of res judicata applicable in  

writ jurisdiction and held as under:

 “…Therefore, there can be no doubt that the general   principle  of  res  judicata applies  to  writ  petitions  filed   under  Article  32  or  Article  226.  It  is  necessary  to   emphasise  that  the  application  of  the  doctrine  of  res   judicata to the petitions filed under Art. 32 does not in   any way impair or affect the content of the fundamental   rights guaranteed to the citizens of India. It only seeks to   regulate the manner in which the said rights could be   successfully asserted and vindicated in courts of law.”

28. In   Hope Plantations Ltd. v. Taluk Land Board, Peermade  

& Anr.,  (1999) 5 SCC 590, this Court has explained the scope of  

finality of the judgment of this Court observing as under:

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“One important consideration of public policy is that   the  decision  pronounced  by  courts  of  competent   jurisdiction should be final, unless they are modified or   reversed by the appellate authority and other principle   that  no  one  should  be made to  face  the  same kind of   litigation twice ever because such a procedure should be   contrary to consideration of fair play and justice. Rule of   res  judicata  prevents  the  parties  to  a  judicial   determination  from  litigating  the  same  question  over   again  even  though  the  determination  may  even  be   demonstratedly  wrong.   When  the  proceedings  have   attained finality, parties are bound by the judgment and   are estopped from questioning it.”

(See also: Burn & Co., Calcutta v. Their Employees, AIR 1957 SC  

38;  G.K. Dudani & Ors.  v.  S.D. Sharma & Ors.,  AIR 1986 SC  

1455; and Ashok Kumar Srivastav v. National Insurance Co. Ltd.  

& Ors., AIR 1998 SC 2046).  

29. A three-Judge Bench of this court in  The State of Punjab v.  

Bua Das Kaushal, AIR 1971 SC 1676 considered the issue and came  

to the conclusion that if necessary facts were present in the mind of  

the parties and had gone into by the court, in such a fact-situation,  

absence of specific plea in written statement and framing of specific  

issue of res judicata by the court is immaterial.  

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30. A similar view has been re-iterated by this court in  Union of  

India v. Nanak Singh, AIR 1968 SC 1370 observing as under:  

“This  Court  in  Gulabchand  Chhotalal  v.  State  of   Gujarat, AIR 1965 SC 1153 observed that the provisions   of  Section  11 of  the  Code  of  Civil  Procedure  are  not   exhaustive with respect to all earlier decision operating   as  res  judicata between the same parties  on the  same  matter in controversy in a subsequent regular suit, and   on the  general  principle  of  res  judicata,  any  previous  decision on a matter  in controversy,  decided after  full   contest or after affording fair opportunity to the parties   to prove their case by a Court competent to decide it,   will operate as res judicata in a subsequent regular suit.   It  is  not  necessary  that  the Court  deciding the  matter   formerly be competent to decide the subsequent suit or   that the former proceeding and the subsequent suit have   the  same  subject-matter.  There  is  no  good  reason  to   preclude,  such  decisions  on  matters  in  controversy  in   writ proceedings under Article 226 or Article 32 of the   Constitution  from  operating  as  res  judicata in  subsequent  regular  suits  on  the  same  matters  in   controversy between the same parties and thus to give   limited effect to the principle of the finality of decisions   after full contest.”

31. It  is  a settled legal  proposition that the ratio of  any decision  

must be understood in the background of the facts of that case and the  

case is only an authority for what it actually decides, and not what  

logically follows from it.   “The court should not  place reliance on  

decisions without discussing as to how the factual situation fits in with  

the fact-situation of the decision on which reliance is placed.”  

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32. Even otherwise, a different view on the interpretation of the law  

may be possible but the same should not be accepted in case it has the  

effect of unsettling transactions which had been entered into on the  

basis of those decisions, as reopening past and closed transactions or  

settled titles all over would stand jeopardized and this would create a  

chaotic situation which may bring instability in the society.  

The declaration that “Dikshitars are religious denomination or  

section thereof” is in fact a declaration of their status and making such  

declaration is in fact a judgment in rem.   

33. In Madan Mohan Pathak & Anr. v. Union of India & Ors.,  

AIR 1978 SC 803, a seven-Judge Bench of this Court dealt  with a  

case wherein the question arose as to whether the order passed by the  

Calcutta  High  Court  issuing  writ  of  mandamus  directing  the  Life  

Insurance Corporation of India (hereinafter referred to as L.I.C.) to  

pay cash bonus for the year 1975-76 to its class 3 and 4 employees in  

terms of the settlement between the parties was allowed to become  

final.   Immediately  after  the  pronouncement  of  the  judgment,  the  

Parliament enacted the LIC (Modification of Settlement) Act, 1976.  

The appeal filed against the judgment of Calcutta High Court was not  

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pressed by LIC and the said judgment was allowed to become final.  

This  Court  rejected  the  contention  of  the  LIC that  in  view of  the  

intervention of legislation, it was not liable to meet the liability under  

the said judgment.  The Court held that there was nothing in the Act  

which nullifies the effect of the said judgment or which could set at  

naught the judgment or take away the binding character of the said  

judgment against LIC.  Thus, the LIC was liable to make the payment  

in accordance with the said judgment and it could not be absolved  

from the obligation imposed by the said judgment.   

34. This  Court,  while  considering  the  binding  effect  of  the  

judgment of this Court, in  State of Gujarat & Anr. v. Mr. Justice  

R.A. Mehta (Retd.) & Ors., AIR 2013 SC 693, held:

“There can be no dispute  with respect  to the settled   legal  proposition  that  a  judgment  of  this  Court  is   binding,…..It  is  also  correct  to  state  that,  even  if  a   particular  issue  has  not  been  agitated  earlier,  or  a   particular  argument  was  advanced,  but  was  not   considered, the said judgment does not lose its binding   effect, provided that the point with reference to which an   argument  is  subsequently  advanced,  has  actually  been   decided.  The  decision  therefore,  would  not  lose  its   authority,  "merely  because  it  was  badly  argued,   inadequately  considered  or  fallaciously  reasoned".   (Vide: Smt. Somavanti & Ors. v. The State of Punjab &   Ors.,  AIR  1963  SC  151;  Ballabhdas  Mathuradas   

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Lakhani  &  Ors.  v.  Municipal  Committee,  Malkapur,   AIR 1970 SC 1002;  Ambika Prasad Mishra v. State of   U.P.  &  Ors.,  AIR  1980  SC  1762;  and  Director  of   Settlements, A.P. & Ors. v. M.R. Apparao & Anr., AIR  2002 SC 1598).”

35. The issue can be examined from another angle. Explanation to  

Order XLVII, Rule 1 of Code of Civil Procedure, 1908 (hereinafter  

referred to as the ‘CPC’) provides that if the decision on a question of  

law  on  which  the  judgment  of  the  court  is  based,  is  reversed  or  

modified by the subsequent decision of a superior court in any other  

case, it shall not be a ground for the review of such judgment. Thus,  

even  an  erroneous  decision  cannot  be  a  ground  for  the  court  to  

undertake review, as the first and foremost requirement of entertaining  

a review petition is that the order, review of which is sought, suffers  

from any error apparent on the face of the order and in absence of any  

such  error,  finality  attached  to  the  judgment/order  cannot  be  

disturbed. (Vide:  Rajendra Kumar & Ors.  v.  Rambhai & Ors.,  

AIR 2003 SC 2095).

36. In view of the fact that the rights of the respondent no. 6 to  

administer  the  Temple  had already been  finally  determined by the  

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High Court in 1951 and attained finality as State of Madras (as it then  

was) had withdrawn the notification in the appeal before this Court,  

we are of the considered opinion that the State authorities under the  

Act 1959 could not pass any order denying those rights.  Admittedly,  

the  Act  1959  had  been  enacted  after  pronouncement  of  the  said  

judgment but there is nothing in the Act taking away the rights of the  

respondent  no.  6,  declared  by  the  court,  in  the  Temple  or  in  the  

administration thereof.  

37. The fundamental  rights  as  protected  under  Article  26  of  the  

Constitution are already indicated for observance in Section 107 of the  

Act 1959 itself. Such rights cannot be treated to have been waived nor  

its  protection  denied.  Consequently,  the  power  to  supersede   the  

functions of a `religious denomination` is to be read as regulatory for  

a certain purpose and for a limited duration, and not an authority to  

virtually abrogate the rights of administration conferred on it.  

In  such  a  fact-situation,  it  was  not  permissible  for  the  

authorities  to  pass  any  order  divesting  the  said  respondent  from  

administration of the Temple and thus, all orders passed in this regard  

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are liable to be held inconsequential and unenforceable. More so, the  

judgments relied upon by the respondents are distinguishable on facts.

38. Thus, in view of the above, it was not permissible for the High  

Court  to  assume that  it  had jurisdiction to  sit  in  appeal  against  its  

earlier judgment of 1951 which had attained finality.  Even otherwise,  

the  High  Court  has  committed  an  error  in  holding  that  the  said  

judgment in Marimuthu Dikshitar (Supra) would not operate as res  

judicata.  Even if the Temple was neither established, nor owned by  

the  said  respondent,  nor  such  a  claim has  ever  been made by the  

Dikshitars,  once the High Court in earlier judgment has recognised  

that they constituted `religious denomination’ or section thereof and  

had right to administer the Temple since they had been administering  

it for several centuries, the question of re-examination of any issue in  

this regard could not arise.

39. Relevant features of the order passed by the Commissioner are  

that  the  Executive  Officer  shall  be  incharge  of  all  immovable  

properties of the institution; the Executive Officer shall be entitled to  

the custody of  all  immovables,  livestock and grains;  the Executive  

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Officer  shall be entitled to receive all the income in cash and kind and  

all offerings; all such income and offerings shall be in his custody; all  

the office holders and servants shall work under the immediate control  

and superintendence of the Executive Officer, though subject to the  

disciplinary control of the Secretary of the respondent no.6., etc.  

40. Section 116 of the Act 1959 enables the State Government to  

frame  rules  to  carry  out  the  purpose  of  the  Act  for  “all  matters  

expressly required or allowed by this Act to be prescribed”.  Clause 3  

thereof  requires  approval  of  the  rules  by  the  House  of  State  

Legislature. The Executive Officer so appointed by the Commissioner  

has  to  function  as  per  assigned  duties  and  to  the  extent  the  

Commissioner directs him to perform.  

41. It  is  submitted  by  Dr.  Swamy that  rules  have  to  be  framed  

defining the circumstances under which the powers under Section 45  

of the Act 1959 can be exercised. The Act 1959 does not contemplate  

unguided or unbridled functioning. On the contrary, the prescription  

of rules to be framed by the State Government under Sections 116  

read with Sections 45 and 65, etc. of the Act 1959 indicates that the  

legislature  only  intended  to  regulate  and  control  any  incidence  of  

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maladministration and not a complete replacement by introducing a  

Statutory authority to administer the Temple.  

42.     Section 2(16) CPC defines the term `prescribed` as prescribed  

by rules. Further, Section 2(18) CPC defines rules as Rules and forms  

as  contained  in  the  First  Schedule  or  made  under  Section  122  or  

Section 125 CPC. Sections 122 and 125 CPC provide for power of the  

High Court  to  make rules  with respect  to  its  own functioning and  

procedure.  Therefore,  it  appears  that  when  the  legislature  uses  the  

term `prescribed`, it only refers to a power that has simultaneously  

been  provided  for  or  is  deemed  to  have  been  provided  and  not  

otherwise.  Similarly, Section 2(n) of the Consumer Protection Act,  

1986 defines prescribed as “prescribed by rules made by the State  

Government or as the case may be, by the Central Government under  

the Act”.    

43. Section  45  of  the  Act  1959  provides  for  appointment  of  an  

Executive Officer, subject to such conditions as may be  prescribed.  

The term ‘prescribed’ has not been defined under the Act.  Prescribed  

means  prescribed by rules.   If  the  word ‘prescribed’  has  not  been  

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defined  specifically,  the  same  would  mean  to  be  prescribed  in  

accordance with law and not otherwise.  Therefore, a particular power  

can be exercised only if a specific enacting law or statutory rules have  

been framed for  that  purpose.  (See:  Manohar Lal  Chopra v.  Rai  

Bahadur  Rao Raja  Seth  Hiralal,  AIR 1962  SC 527;  Hindustan  

Ideal Insurance Co. Ltd. v. Life Insurance Corporation of India,  

AIR  1963  SC  1083;  Maharashtra  SRTC  v.  Babu  Goverdhan  

Regular Motor Service Warora & Ors.,  AIR 1970 SC 1926;  and  

Bharat Sanchar Nigam Ltd. & Anr.  v. BPL Mobile Cellular Ltd.  

& Ors., (2008) 13 SCC 597).

44. Shri  Subramonium  Prasad,  learned  AAG,  has  brought  the  

judgment in M.E. Subramani & Ors. v. Commissioner, HR&CE &  

Ors.,  AIR 1976 Mad 264, to our notice, wherein the Madras High  

Court while dealing with these provisions held that the Commissioner  

can  appoint  an  Executive  Officer  under  Section  45  even  if  no  

conditions have been prescribed in this regard. It may not be possible  

to approve this view in view of the judgments of this Court referred to  

in  para  41  supra,  thus,  an  Executive  Officer  could  not  have  been  

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appointed in the absence of any rules prescribing conditions subject to  

which such appointment could  have been made.  

45. However,  Shri  Subramonium  Prasad,  learned  AAG,  has  

submitted that so far as the validity of Section 45 of the Act 1959 is  

concerned, it is under challenge in Writ Petition (C) No. 544 of 2009  

and the said petition had earlier been tagged with these appeals, but it  

has  been de-linked and is  to  be  beard  after  the  judgment  in  these  

appeals is delivered.  Thus, in view of the stand taken by the State  

before this court, going into the issue of validity of Section 45 of the  

Act 1959 does not arise and in that respect it has been submitted in  

written submissions as under:          

(a) The  scheme  of  administration  in  Board’s  Order  

No.997  dated  8.5.1933  under  the  Act  1927  contained  

various  provisions  inter-alia  that  active  management  

would rest in the committee consisting of nine members  

who were to be elected from among the Podhu Dikshitars  

(clause 4);

(b) At the time of issuing the order of appointment of  

Executive Officer, the Podhu Dikshitars were given full  

opportunity of hearing and the powers and duties of the  

Executive Officer as defined by the Commissioner would  

show that the religious affairs have not been touched at  

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all and the trustees and the Executive Officers are jointly  

managing the temple.   The Podhu Dikshitars  have not  

been  divested  of  the  properties and  it  was  not  the  

intention of the State Government to remove the trustees  

altogether,  rather  the  Executive  Officers  function  

alongwith the trustees;  

(c) In any event, the Podhu Dikshitars are trustees in  

the  temple and  they have not  been divested of  their  

properties. The Executive Officer is only collaborating  

with the trustees  in  administering the  properties.  Their  

religious  activities  have  not  been  touched.  Neither  the  

powers  of  the  trustees  have  been  suspended  nor  the  

Executive Officers have been vested with their powers  

and the Executive Officers  only assist  the trustees in  

management of the temple.  It was not the intention to  

remove  the  trustees  altogether,  nor  the  order  of  

appointment  of  the  Executive  Officer  suspends  the  

scheme already framed way back in 1939.   

46. Be that as it may, the case is required to be considered in light  

of the submissions made on behalf of the State of Tamil Nadu and  

particularly in view of the written submissions filed on behalf of the  

State.  

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47. Even if the management of a temple is taken over to remedy the  

evil, the management must be handed over to the person concerned  

immediately  after  the evil  stands  remedied.  Continuation  thereafter  

would tantamount to usurpation of their proprietary rights or violation  

of the fundamental rights guaranteed by the Constitution in favour of  

the persons deprived. Therefore, taking over of the management in  

such  circumstances  must  be  for  a  limited  period.  Thus,  such  

expropriatory order requires to be considered strictly as it  infringes  

fundamental rights of the citizens and would amount to divesting them  

of their legitimate rights to manage and administer the temple for an  

indefinite period.  We are of the view that the impugned order is liable  

to be set aside for failure to prescribe the duration for which it will be  

in force.  

Super-session  of  rights  of  administration  cannot  be  of  a  

permanent enduring nature. Its life has to be reasonably fixed so as to  

be  co-terminus  with  the  removal  of  the  consequences  of  

maladministration. The reason is that the objective to take over the  

management and administration is not the removal and replacement of  

the  existing  administration  but  to  rectify  and  stump  out  the  

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consequences of maladministration. Power to regulate does not mean  

power to supersede the administration for indefinite period.

Regulate is defined as to direct; to direct by rule or restriction;  

to direct or manage according to the certain standards, to restrain or  

restrict.   The  word  `regulate’  is  difficult  to  define  as  having  any  

precise  meaning.   It  is  a  word  of  broad  import,  having  a  broad  

meaning and may be very comprehensive in scope. Thus, it may mean  

to control or to subject to governing principles.  Regulate has different  

set of meaning and must take its colour from the context in which it is  

used having regard to the purpose and object of the legislation. The  

word `regulate’ is elastic enough to include issuance of directions etc.  

(Vide: K. Ramanathan v. State of Tamil Nadu & Anr.,  AIR 1985  

SC 660; and  Balmer Lawrie & Company Limited & Ors. Partha  

Sarathi Sen Roy & Ors., (2013) 8 SCC 345)

48. Even  otherwise  it  is  not  permissible  for  the  State/Statutory  

Authorities  to  supersede  the  administration  by  adopting  any  

oblique/circuitous method.  In  Sant Lal Gupta & Ors. v. Modern  

Coop. Group Housing Society Ltd. & Ors., (2010) 13 SCC 336, this  

Court held:  

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“It is a settled proposition of law that what cannot be   done directly,  is  not  permissible  to  be done obliquely,   meaning thereby,  whatever  is  prohibited  by  law to  be   done,  cannot  legally  be  effected  by  an  indirect  and   circuitous  contrivance  on  the  principle  of  “quando   aliquid  prohibetur,  prohibetur  et  omne  per  quod  devenitur ad illud”. An authority cannot be permitted to   evade a law by “shift or contrivance”.”

(See also: Jagir Singh v.  Ranbir Singh,  AIR 1979 SC 381; A.P.  

Diary Dev. Corporation federation v. B. Narsimha Reddy & Ors.  

AIR 2011 SC 3298; and State of Tamil Nadu & Ors. v. K. Shyam  

Sunder & Ors. AIR 2011 SC 3470).

49.  We  would  also  like  to  bring  on  the  record  that  various  

instances  whereby  acts  of  mismanagement/maladministration/  

misappropriation alleged to have been committed by Podhu Dikshitars  

have been brought to our notice. We have not gone into those issues  

since we have come to the conclusion that the power under the Act  

1959 for appointment of an Executive Officer could not have been  

exercised  in  the  absence  of  any  prescription  of  circumstances/  

conditions in which such an appointment may be made. More so, the  

order of appointment of the Executive Officer does not disclose as for  

what  reasons  and  under  what  circumstances  his  appointment  was  

necessitated.   Even  otherwise,  the  order  in  which no period of  its  

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operation  is  prescribed,  is  not  sustainable  being  ex  facie arbitrary,  

illegal and unjust.  

50. Thus, the appeals are allowed. Judgments/orders impugned are  

set aside. There shall be no order as to costs.   

.........................………………..J.  (DR. B.S. CHAUHAN)   

                                                        .............…………………….…J.                  (S.A. BOBDE)

New Delhi, January 6, 2014

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