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B Upendran | HENB | Chennai | June 9, 2021:: Emphasizing the need to preserve cultural heritage, the Madras High Court has issued a set of 75 directions to the State of Tamil Nadu to ensure that antique Hindu temples temples and ancient monouments in the state are properly maintained through Hindu Religious & Charitable Endowments Department (HR&CE)+, Government of Tamil Nadu.
“…the custodians of grand and antique temples and ancient monuments are least bothered and the conservation of our valuable heritage is deteriorating not due to any natural calamity or catastrophe, but due to reckless administration and maintenance under the guise of renovation”, observed a division bench comprising Justices R Mahadevan and PD Audikesavalu in its 224-page judgment.
Not only that, on 9th June, The Madras High Court called for an explanation from the State government on the status of 47,000 acres of temple land reportedly missing from government records since the policy note for 1984-85 states that there were 5.25 lakh acres whereas the note for 2019-20 refers to availability of only 4.78 lakh acres.
Justices N. Kirubakaran and T.V. Thamilselvi directed Government Counsel Richard Wilson to take notice on behalf the Hindu Religious and Charitable Endowments department and ensure that a counter affidavit was filed by July 5. The judges said, it prima facie appears that the 47,000 acres were missing when compared to the figures provided in the two policy notes.
Therefore, they insisted that the government should file a counter affidavit with specific details and survey numbers of the lands mentioned in the policy note for the years 1984-85 and those mentioned in the latest policy note. The judges pointed out that it should not be difficult for the HR&CE department to submit the information in court since it was expected to be in possession of all those details.
The interim orders were passed on a writ petition which insisted on retrieving the missing lands and restore their possession to the temples to which they belong so the income derived from them could be used for maintaining the institutions besides performing prayers and rituals.
The Court criticized the departments of HR&CE and the Archeology for not doing enough for the upkeep of ancient temples and idols. “It is startling to find that the HR&CE department with all its income from major temples has not been able to maintain historical temples and safeguard the Idols, which in market, have antique value based on their age. Some temples in the state have also been recognised by the UNESCO as heritage sites. Many temples constructed at least 2000 years ago or much before, recognised by UNESCO, are in ruins. Neither the Archaeology Department nor the HR&CE Department has shown interest to identify and protect them.This has also come to the advantage of the miscreants, who have laid their hands on the Idols”, the Court remarked.
Laying down an exhaustive set of guidelines covering things ranging from spiritual to scientific upkeep of temples, idols, assets and staff, the has asked state and central governments to do everything to conserve the rich heritage of Tamil Nadu. “There is dire need to manage and conserve our ancient cultural heritage and monuments employing better advanced technology in protecting, preserving and nourishing the same,” said a division bench consisting of Justice R Mahadevan and Justice P D Audikesavalu in its landmark judgment.
Passing further orders on a batch of PILs, including suo motu public interest writ proceedings initiated by the high court itself, the bench said the state should constitute a 17-member heritage commission within two months, and declared that no structural alteration or repair of any monument, temple, idol, sculpture or murals notified either under the Central Act or the State Act should take place without the sanction of the commission.
Within eight weeks, the state should also constitute district level committees, comprising qualified stapathis, experts in history, architecture, murals and conservation besides representative from HR&CE department. The committees shall take stock of all idols in temples which fall within the definition of “ancient monument” or “antique”, prepare a list of such monuments, take photographs and computerize the same.
The HR&CE department must ensure that all temples have strong rooms, which are efficiently secured with latest scientific technology and must be under 24×7 video surveillance with alarm. All the existing ICON Centres must be brought under 24×7 video surveillance with alarm, the bench said.
It then asked the department to file a report within eight weeks listing out the number of temples without trustees, the duration of such vacancy, the particulars of the persons appointed as “fit person” and the steps taken by the department to appoint trustees.
A special tribunal shall be formed to exclusively deal with the matters relating to the religious institutions come under the provisions of the HR&CE Act, such as, disputes on religious affairs, culture, tradition, heritage, inams and recovery of pending rent, validity of lease, illegal encroachment and other temple and mutts land issues. They will be headed by retired district judge as chairman with two or more members from the rank of the retired subordinate judicial officers, the bench said.
On its part, the Union government shall implement the Ancient Monuments Act in letter and spirit, by declaring all religious structures more than 100 years old, including temples, temples’ tanks, mutts, temple chariots, jewels, art, artefacts, and sacred groves, including private denomination temples, as ‘national monuments’ with immediate effect.
The Court also passed elaborate directions which can lead to sweeping reforms in the administration of temples under the Hindu Religious and Charitable Endowments Act (HR&CE Act). See the analysis on important points as laid the direction of the Hon’ble Court in the related matters.
Temple lands must always remain with temples
The Court emphasized that temple lands must always remain with temples and the State Government or HR&CE Department should not alienate or give away such lands contrary to the wish of the donors.
The Court also observed that the ‘public purpose theory’ should not be invoked over temple lands for acquisitions as the community interests generally rest with such lands. “The state Government or the Commissioner of the HR&CE department, who are the Trustee/administrator of the temple lands,shall not alienate or give away the lands contrary to the wish of the donor. The lands shall always remain with the temples. The public purpose theory shall not be invoked in cases of temple lands over which the interest of the community people of the religious denomination generally rests”, the Court directed.
The Court also directed the authorities to take stock of the list of leaseholds and encroachments over temple lands, and take immediate steps for recovery of rent arrears, eviction of defaulters and encroachers. A list of defaulters with the arrears due from them must be prepared within a period of six (6) weeks and the same must be published in the website. Appropriate steps must be taken to evict them and recover the arrears as per the provisions of the HR&CE Act and the rules there under. The encroachment and illegal constructions in the protected area, archaeological sites, temple lands, etc., must immediately be removed. Appropriate action must be taken against the errant Government officials of the central as well as state department and officers under the HR&CEdepartment for not removing the encroachments in the protected and regulated area, within a period of eight (8) weeks on expiry of the time given.
Temple funds must be first used for those temples
The funds of individual temples should first be utilised for the maintenance of those temples.
“The funds of the temples shall first be utilized for the maintenance of temples, conducting temple festivals, payment to its staff including the archakas, oduvars, musicians, folklore and drama artiste. In case of surplus funds, the same shall be utilized for attending the repair and maintenance of other temples in the state as specified under the HR&CE Act and the Rules framed there under and for propaganda of the tenets of all or any of the religious institutions under the HR&CE Act”, the Court observed.
The Court also passed directions to the HR&CE Department for the proper audit of temple assets. It observed that the HR&CE Department may permit the stakeholders of the various religious denominations to participate in the meetings conducted by the Committees as and when required.
Special Tribunal under HR&CE Act
Significantly, the Court directed the formation of a Special Tribunal under the Tamil Nadu Hindu Religious and Cultural Endowments (HR&CE Act) to exclusively deal with matters relating to temple such as, disputes on religious affairs,culture, tradition, heritage, inams and recovery of pending rent, validity of lease, illegal encroachment and other temple and mutts land issues.
“A Special Tribunal shall be formed to exclusively deal with the matters relating to the religious institutions come under the provisions of the HR&CE Act, such as, disputes on religious affairs, culture, tradition, heritage, inams and recovery of pending rent,validity of lease, illegal encroachment and other temple and mutts land issues” “Such Tribunal shall be constituted under the Head of the Working or Retired District Judge as Chairman with two or more Members from the rank of the retired Subordinate Judicial Officers with the jurisdiction to decide all the matters related to the nature and status of the Religious Institutions, privileges and performances of rituals and poojas in all the religious institutions and their properties and the right of the worshippers by conducting the cases like a Civil Court of summary nature within the maximum period of six (6) months”
Constitute Committee to review HR & CE Act
The bench further directed that a High level committee has to be formed to review the HR&CE Act once in three years to make necessary amendments, however, subject to judicial review. The HR&CE Act must be suitably amended by strict incorporation of penal provisions as per IPC and the procedures laid down under the Cr.P.C to cover all the illegal acts done in respect of the temples for proper action. Steps must be taken to amend the HR&CE Rules by incorporating various provisions on the line of National Conservation Policy and International Charters regarding conservation of monuments.
Constitute Heritage Commission The bench directed that the state should constitute a 17-member heritage commission within two months, and declared that no structural alteration or repair of any monument, temple, idol, sculpture or murais notified either under the Central Act or the State Act should take place without the sanction of the commission. “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 advice to the State, supervise the restoration, repair works etc., and maintain the same,” the court order read. The Court also passed directions on protecting historical monuments, sites, ancient temples, idols, safeguarding temple funds, conducting audits, retrieving temple properties, appointing temple staff, paying salaries to them, filling up vacancies in the post of trustee, maintaining the animals owned by the temples and safeguarding their waterbodies. The Hindu Religious and Charitable Endowments department website must display the number of idols of historical importance, the number stolen, the number retrieved and the status of investigation with regard to stolen cases, the court ordered. “There is dire need to manage and conserve our ancient cultural heritage and monouments employing better advanced technology in protecting, preserving and conserving the same”, the bench observed.
Declare all structures aged more than 100 years as national monouments
The Court directed that the Central Government shall implement the Ancient Monuments Act in letter and spirit, by declaring all religious structures more than 100 years old including temples, temples’ tanks, mutts, temple chariots, jewels, art, artefacts, and sacred groves etc., including private denomination temples, as ‘national monuments’ with immediate effect. The orders were passed on a suo motu public interest litigation petition taken up by the court on the basis of a reader’s letter titled ‘The Silent burial’ published in The Hindu on January 8, 2015. The suo moto case was initiated by the then Chief Justice Sanjay Kishan Kaul(now Supreme Court judge). The bench also considered a batch of other PILs which were filed after the suo moto case was taken.
__Inputs from TNN | The Hindu | Live Law.