K. Sevanthinatha Pandarasannathi Vs. Government of Tamilnadu, Rep. by Its Secretary and Commissioner Commercial Taxes and Charitable Endowments Department and ors. - Court Judgment

Excerpt:
trusts and societies - amendment - legislative competence - section 26 of the tamil nadu hindu religious and charitable endowments act - petition filed for challenging the constitutional validity of amending act 30 of 1994, whereby section 26 of the tamil nadu hindu religious and charitable endowments act was amended, barring non-citizens to be qualified to be trustee(s) of any religious institution under the act - held, it was only a hindu/foreigner who was disabled by the amendment from being a trustee of a religious trust or endowment - there was no bar for a christian or a muslim to be a head of the wakf or the church in india even though he might happen to be a foreigner - thus the need for a uniform policy which is possible only under a central legislation and not a state.....orderk.p. sivasubramaniam, j.1. in w.p. no. 13122 of 1994, the petitioner, claiming to be the hereditary trustee of devanarayanaswamy devasthanam, seeks for a declaration that the amendment act 30 of 1994 amending the tamil nadu hindu religious and charitable endowments act 1959 as ultra vires the constitution.2. in w.p. no. 13046 of 1998, one chinnasamy had sought for a mandamus to direct the respondents/union government of india and the state government to detain and deport the seventh respondent (writ petitioner in w.p. no. 13122 of 1994) to srilanka.3. for convenience of description, the writ petitioner in w.p. no. 13122 of 1994 is described as the petitioner.4. w.p. no. 13122 of 1994:though the background of the dispute relates to a long history of the establishment of.....

Judgment:
ORDER

K.P. Sivasubramaniam, J.

1. In W.P. No. 13122 of 1994, the petitioner, claiming to be the hereditary trustee of Devanarayanaswamy Devasthanam, seeks for a declaration that the Amendment Act 30 of 1994 amending the Tamil Nadu Hindu Religious and Charitable Endowments Act 1959 as ultra vires the Constitution.

2. In W.P. No. 13046 of 1998, one Chinnasamy had sought for a Mandamus to direct the respondents/Union Government of India and the State Government to detain and deport the seventh respondent (writ petitioner in W.P. No. 13122 of 1994) to Srilanka.

3. For convenience of description, the writ petitioner in W.P. No. 13122 of 1994 is described as the petitioner.

4. W.P. No. 13122 of 1994:

Though the background of the dispute relates to a long history of the establishment of Devanarayanaswamy Devasthanam, the claim of the petitioner to the post of Managing Trustee and the counter claim by other persons and long disputes over the same, this Court need not go into all the said issues in view of the narrow scope of this writ petition, namely, the constitutional validity of Amending Act 30 of 1994 whereby, Section 26 of the Tamil Nadu Hindu Religious and Charitable Endowments Act was amended, barring non-citizens to be qualified to be trustee(s) of any religious institution under the Act. It is sufficient to state only the facts relevant to the decision on that issue.

5. The petitioner claims that the temple in question is of an ancient origin and in the beginning of the 20th Century, there were certain disputes among the Trustees leading to the filing of O.S. No. 6 of 1993, Sub Court, Tanjore, regarding the Management of the Devasthanam. The dispute ultimately came before this Court in A.S. Nos. 121 and 122 of 1999 and by judgment and decree dated 3rd April, 1923 this Court had framed a scheme decree and under Clause 3, the trusteeship vested in Varani Adheenasthan and the residents of Karanavai Village in the District of Jaffna in Srilanka and the Management Trustee shall be appointed by the Varani Adheenam. The petitioner claims to be the validly appointed Managing Trustee. Subsequently, another scheme had been framed in O.A. No. 60 of 1960 and a further modification in O.A. No. 71 of 1972 dated 22nd December, 1980. There appears to have been some inter se disputes between the trustees about which we are not concerned in this writ petition.

6. According to the petitioner, certain persons having vested interests over the properties of the temples and could not succeed in interfering with the administration of the temple, had caused the introduction of the impugned amendment only with the motive to deprive him of the trusteeship to which he is legally entitled.

7. Mr. A.L. Somayaji, learned senior counsel and Mr. R. Subramanian, representing the petitioners herein, made elaborate submissions and contended that the statement of object and reasons expose the real motive, namely, that the amendment was specifically directed against the petitioner Devasthanam, and hence, mala fide. Learned counsel also referred to Entry 17 of the Union List and Entry 28 of the Concurrent List and contended that the subjects under Entry 17 of the Union List was not within the competence of the State Legislature to pass any Act.

8. Reference was also made to Articles 246 and 254 of the Constitution in support of the same contention. The contention was that a non-citizen was also entitled to claim fundamental rights to seek enforcement of Article 14, though may not be entitled to protection under Article 19. A further submission on behalf of the petitioner was that the Act was intended to overcome a valid civil Court decree - scheme framed by the Court. Such power was not vested with the State Legislature. Amendments can be visualised for emphasizing a legal issue to overcome the effect of a legal issue adjudicated in a judgment and decree. But a scheme which is framed inter se between group of persons cannot be overcome by passing an amendment. Though allegations of mala fides could not be directed against the Legislature, the admitted object of the legislation to overcome a valid judgment cannot be sustained.

9. Learned Advocate General appearing for the Government, contended that the Hindu Religious Endowment was a concurrent subject under Entry 28 and hence, the State was entitled to legislate. The issue was not with reference to any issue or conditions under which an alien can be permitted to have commercial dealings with an Indian citizen, to hold any property or not, or whether he is entitled to citizenship, etc., which alone would fall under Entry 17 of List I. But the administration of the temple being within the power and competence of the State, it was open to the State Legislature to enact. The impugned provision is not a new Act, but only an amendment to a State Act which was within the competence of the State Legislature.

10. On the issue of the right of a foreign national, learned Advocate General contended that it is not open to a foreign national to claim any equality in the matter of exercise of any right guaranteed under the Constitution except a right of livelihood and human rights as available under Article 21 of the Constitution. He cannot claim to enjoy or enforce any other rights beyond the rights ensured under Article 21.

11. It is also within the competence of the Legislature to enact law which may incidentally have impact upon a decision rendered by the civil Court. Legislature is competent to enact laws even to overcome a decree. Learned Advocate General had also referred to several instances of the Supreme Court upholding such amendments.

12. Mr. B. Kumar, learned senior counsel appearing for the private parties who had been later impleaded in the writ petition and the petitioner in W.P. No. 13046 of 1998, seeking the deportation of the petitioner, also supplemented the submissions of the learned Advocate General. Learned counsel referred to the Judgment of C. Nagappan, J. in Sahrupa Nachiar v. V.S. Mohamed Hasia Maraikayar 2001 (1) MLJ 188 : in support of his contention that a non-citizen has no right to hold any immovable property as a Trustee in India.

13. I have considered the submissions of both sides regarding the validity of the impugned amendment. As I am inclined to agree with the ground of legislative incompetence as raised by the learned counsel for the petitioner, it is not necessary to go into the issue as to whether an Act of Legislature could override or enact and frame Rules, which has the effect of overriding the terms of a scheme decree.

14. As regards the legislative competence, the issue pertains to the right of a foreign national as governed by the provisions of the Foreigners Act 1946. The subject falls directly under Entry 17 of the Union List, namely, 'Citizenship, nationalisation and aliens'. Admittedly, there is no other Entry either in the Concurrent List or in the State List, which could have some relevance to the affairs of a foreigner. Therefore, prima facie, there is strong ground to sustain the claim of the petitioner and it is for the respondent to show that the State Amendment is valid. Learned Advocate General had also referred to Article 254(2) and contended that the President having given assent to the amendment on 13th May, 1984, even if there was any repugnancy, the Act will validly prevail in the State. Learned Advocate General had further contended that the impugned amendment is with reference to a State Subject only dealing with only issues pertaining to religious endowments. The object was only to regulate the administration of the temple. As an example, he would say that the disqualification of an insolvent under Section 26(c) of the Act would also pertain to insolvency which is a Central Subject. Foreigners Act dealt with only larger issues like presence and departure of the foreigners and their rights to hold property. There was also no substance in the submission that the impugned Act was violative of Article 14. There was no discrimination among the foreign nationals and hence, the amendment was perfectly valid. A foreign national cannot equate himself to a citizen and claim equality, which would amount to treating unequals as equals.

15. I find myself unable to accept the contentions raised by the learned Advocate General. Though the amendment is carried out to the Tamil Nadu Act, the impact of the amendment is one of affecting the rights of a foreign national and taking away his existing right which is not affected or taken away by the Central Act. The rights or the conduct of a foreigner are matters which are specified and occupied by the Central Act, under the provisions of the Foreigners Act 1946. Section 3 is the source of rule making power and < the impugned amendment would positively impinge upon any one of the sub-clauses under (vi), (vii) and (ix) of Section 3(2)(e) of the Act which are as follows:

'(vi) Prohibiting him from association with persons of a prescribed or specified description;

(vii) Prohibiting him from engaging in activities of a prescribed or specified description;

(ix) Otherwise regulating his conduct in any such particular as may be prescribed or specified.'

The right of movement of a foreigner and the competence to impose restrictions on such movement, right of engaging himself in activities, regulating his conduct etc., are within the area in which the Central Legislature alone is competent to legislate. Therefore, the right of an alien, his movement and conduct being fully covered and governed by the Central Act, will not fall under the Concurrent List so as to be saved under Article 254(2) on the President giving his assent.

16. The fallacy in treating the amendment as one falling under Entry 28 of List III and not as one under Entry 17 of List I, is due to ignoring the real impact of the amendment. The outcome of the amendment is to prohibit a foreigner to be a trustee in Tamil Nadu alone, and cannot prevent him being a Trustee of a temple in any other State. It is in the said context one has to view the effect of the amendment, which is a restriction on the movement and rights of foreigners. Such a restriction can be imposed and regulated only under the Central Act and Rules. This can be elucidated further by posing a question as to whether a State can bar the admission of a foreigner into an educational institution or a professional institution, in view of the fact that education falls under Entries 25 and 26 of the Concurrent List. One could possibly visualise many such situations which would be totally opposed to the basic policy of the Government of India towards the foreigners and their rights and that is why, the issue of citizenship and aliens and their rights are completely vested and covered under Entry 17 in the Union List.

17. Learned Advocate General's reference to insolvency as a ground for disqualification may not also be a solution to the issue before this Court. Who is an insolvent is to be judged by the definition under the Central Act. Insolvency is a statutory disqualification on adjudication under the provisions of the Insolvency Act 1920 and under Section 73 of the said Act on declaration, an insolvent becomes disqualified to hold any public office or being elected to any local authority. The disqualification applies to insolvents under all circumstances and the provision under Section 26(c) of the Hindu Religious and Charitable Endowments Act is redundant and can be stated to be a provision reaffirming the disqualification mandated under the Central Act. Even in the absence of Section 26(c) of the Hindu Religious and Charitable Endowments Act, an insolvent would be disqualified from being appointed as a Trustee, in view of Section 73 of the Insolvency Act 1920.

18. Learned Advocate General referred to the judgment of the Supreme Court in South Indian Film Chamber of Commerce, Madras v. Entertaining Enterprises : (1995)2SCC462 . It is true that the rule of pith and substance has been applied in the said judgment. In the context and content of the legislation which arose for consideration in that case, it was held that Section 9(2) of the Tamil Nadu (Exhibition of Films on Television Screen) Regulation Act 1984 cannot be regarded as a legislation on copyright itself, falling under List-I. The Tamil Nadu Act was held to be only a regulatory provision and not repugnant to the provisions under the Copyrights Act 1957. In contrast, in the case on hand before us, while the Central Act does not contemplate any disqualification for a foreigner to be a trustee of a temple the Tamil Nadu Act had proposed to clamp down a disqualification and consequently impinging upon the rights of a foreigner to be a Trustee, which bar is not contemplated under the Central Act. There can also be no dispute over the fact that a foreigner not being a citizen, was not entitled to any fundamental right guaranteed under the Constitution other than Articles 14 and 21, vide the following judgments relied on by the learned Advocate General:

(i) Anwar v. State of Jammu & Kashmir : [1971]1SCR637 ;

(ii) Gilles Preiffer v. The Union of India and Ors. 1996 WLR 386; and

(iii) Daivid John Hopkins v. Union of India : AIR1997Mad366 .

19. There can be no challenge to the aforesaid proposition in any manner. On the contrary, we are now concerned with an attempt on the part of the State Legislature seeking to impose on a foreigner, a restriction which is not contemplated under the Central Act. It is only the Central Legislature which is competent to say so and not the State Legislature.

20. Learned Advocate General also referred to the judgment of this Court in Abdul Kareem v. D.R.O., Madras and Anr. 1976 TNLJ 218 where under, the order of the respondent cancelling the licence for running a rice mill issued under the Rice Milling Industries Act 1958 in favour of a foreigner was questioned. It was held that the petitioner not being a citizen, cannot be granted with the licence. Specific reliance was placed on the observation that it may not be possible to enforce the regulations against a non-citizen for any violation of the Rules. However, I am inclined to hold that the said judgment came to be delivered on the facts of that case, as he was found to be a non-resident in India.

'Thus, though a non-citizen can claim to exercise any lawful avocation in India, if he is not a resident in India, he may be denied the licence for carrying on such an avocation, as the regulations connected with that avocation cannot be enforced against him.'

21. Therefore, in that case, what was denied was a permission in favour of an individual on the facts of that case and in that decision, the question of validity of imposing a statutory bar on a foreigner and the competence of State Legislature did not arise for consideration.

22. As I have mentioned earlier, the issue has to be viewed from the angle of the rights of a foreigner as an individual and the power to curtail his rights and movements. In the light of the specific provisions under the Foreigners Act as mentioned above, it is not open to the State Government to enact a law or to curtail such rights on the ground that religious endowments fall under the concurrent list.

23. In Shirur Mutt case 1954 SCR 1005, a Bench of the Supreme Court consisting of seven Judges had to consider the validity of some of the provisions of the Hindu Religious and Charitable Endowments Act 1951 especially Section 71(1) of the Act, which provided for annual contribution. The State took the stand that the State Legislature was competent to enact laws touching religious endowments and administration, as the subject was under the Concurrent List vide Entry 28 of List III. The Annual contribution was only in the nature of a fee and not a tax. The Supreme Court held that the contribution was nothing but a levy of tax and hence, would fall only under Entry 97 of List-I and that the State Legislature was incompetent to legislate.

24. The above judgment strengthens the position that merely because the issue pertains to the administration of the religious endowments which fall under the Concurrent List, it does not follow that every issue relating to such administration would fall under Entry 28 of List III only and with the assent of the President, the repugnancy, if any, would be cured.

25. I had also pointed out earlier that the impugned amendment has the result of discrimination between foreigners, namely, a foreigner in Tamil Nadu alone cannot become a trustee of a religious institution, whereas, a foreigner in other states can be a trustee. In State of A.P. v. McDowell and Co. : [1996]3SCR721 the Supreme Court had held that a foreigner is certainly entitled to equality before law.

26. Another aspect of discrimination is that it is only a Hindu/foreigner who is disabled from being a trustee of a religious trust or endowment. There is no bar for a Christian or Muslim to be a Head of the Wakf or the Church in India even though he may happen to be a foreigner and no such provision has been brought to my notice. This would signify the need of a uniform policy which is possible only under a Central Legislation and not a State Legislation. Any policy to be thus adopted with reference to a foreigner, his conduct and rights has to be uniform and not discriminatory from state to state and religion to religion. That is the reason why the scope and application of the provisions of the Foreigners Act is wide and all inclusive. The impugned amendment will also have the result of believers and devotees of Hindu Religion alone in foreign countries being prevented from contributing or establishing Mutts/places of worship. Therefore, for all the aforesaid reasons, I am inclined to hold that the impugned amendment is beyond the legislative competence of the State Legislature and also suffers from the vice of discrimination as between foreigners on the basis of the religion as well as resulting in area-wise discrimination, in view of the fact that the amendment is applicable only to foreigners in Tamil Nadu and not in other states and affecting Hindus alone.

27. One of the reasons which appears to have impelled the State Government to pass the amendment appears to be the complaints which the Government has been receiving about the petitioner or the Government's own perception of the conduct of the petitioner. This Court is not called upon to adjudicate on the said issue as regards the conduct of the petitioner nor is the Court inclined to deal with the contention of the petitioner that he was being targeted and persecuted due to political reasons and that his activities are clean and perfectly legal. This Court is concerned only with testing the validity of the impugned amendment. However, let us even assume for a moment that the petitioner is an undesirable person and he has to be declared as unworthy of being a trustee and that he should be removed from the said position. Nothing prevents the H.R. & C.E. Department from taking appropriate action against the petitioner in accordance with law, as provided under the Act. It is not the contention of the petitioner that the Hindu Religious and Charitable Endowments Act is not applicable to the Trust nor can any such contention be raised, having regard to the wide scope of the Act. Therefore, it is not as though the Government has no power to remove the petitioner if he is found guilty of any misconduct or is unfit to hold the post for any reason. The amendment to the Act, having been contemplated only for that purpose, as could be seen from the objects and reasons, namely, with specific reference to the petitioner Trust, can only be compared to demolishing of the entire building to get rid of the ants.

28. Reliance placed on the judgment in Sahrupa Nachiar v. V.S. Mohamed Hasia Maraikayar 2001 (1) MLJ 188 supra, is also of no help to the respondents. On the facts of that case, it was found that the foreigner did not obtain permission from Reserve Bank of India to hold immovable property in India. Therefore, it is open to a non-citizen to be a Trustee and to hold immovable property after obtaining permission from the Reserve Bank. There is no question of any absolute bar on the foreigner to be a Trustee and to hold immovable property as attempted to be spelt out from the above judgment.

29. With the result, W.P. No. 13122 of 1994 deserves to be allowed.

30. W.P. No. 13046 of 1998:

In this writ petition, the petitioner seeks the detention and deportation of the seventh respondent to Srilanka and to report the said fact to this Court. The petitioner, in the affidavit in support of the writ petition, has referred to various facts and circumstances imputed as against the petitioner. According to the writ petitioner, the seventh respondent came to India only on an education visa from Srilanka on 19th October, 1982. The said visa was valid only for a period of six months and the same was extended upto 28th August, 1983. His continued stay in India after the said date was contrary to the provisions of the Indian Passport Act.

31. In the affidavit, the petitioner has also referred to certain commissions and omissions on the part of the seventh respondent and that the seventh respondent has managed to continue to remain at India without any justification only on the strength of series of orders obtained from this Court on writ petitions filed by the petitioner. Though there was an order of stay in some of the writ petitions for a short period, as on date, there was no impediment for the authorities to detain and deport the seventh respondent. It is further stated that after the amendment of the provisions of the Hindu Religious and Charitable Endowments Act disabling foreigners to be trustees, the stay of the petitioner now has absolutely no justification on any account.

32. In the counter affidavit by the seventh respondent, various allegations made as against him have been denied.

33. Mr. B. Kumar, learned senior counsel representing the writ petitioner, referred to the various provisions under the Foreigners Act and also the series of facts relating to the non-renewal of the visa and the continued remaining of the seventh respondent in Indian soil in an illegal manner. Therefore, according to the learned senior counsel, the seventh respondent has no right to stay in the Indian territory and that the failure on the part of the Central Government to take appropriate and proper action as against the seventh respondent was illegal and unsustainable.

34. Learned counsel for the seventh respondent, however, submits that it was within the discretion of the Central Government to pass orders either to deport the seventh respondent or not. No mandamus can be issued at the instance of a third party, to the Central Government to deport the seventh respondent and the petitioner has absolutely no locus standi to raise such issues and to plead for a mandamus before this Court. It is for the authorities to be satisfied or not with the continued stay of the petitioner.

35. Having regard to the manner of disposal of the writ petition, it is not necessary to go into the various factual contentions raised by the petitioner in W.P. No. 13046 of 1998, some of which are very serious in nature, one of them being that the seventh respondent is assisting terrorists in this State.

36. I am inclined to hold that the power and discretion to decide as to whether a foreigner should be permitted to continue to remain in Indian soil or not is a matter of political exigency and the discretion of the Central Government, based on the information which they have, as regards activities and conduct of the seventh respondent. It is not an issue for the Court to interfere with unless and otherwise it is shown that there is any violation of basic principles of natural justice or motivated by any mala fide reasons.

37. There is no denial of the allegation by the petitioner that the seventh respondent is over-staying and beyond the visa period. Therefore, it follows that unless the visa had been extended by the Government periodically and is valid as on date, the conduct of the seventh respondent in staying within the Indian territory cannot be sustained. It is true that the petitioner appears to have been armed with interim orders obtained now and then from this Court by filing writ petitions raising certain contentions, some of which appear to have found acceptance by this Court and there have been directions to the Central Government to consider the claims of the seventh respondent and to pass appropriate orders in accordance with law. The seventh respondent appears to have forwarded applications for permission for extending his stay in India from time to time. Whether such a permission should be granted or not is again a matter for the Central Government to decide. But the Central Government cannot fail to pass positive orders on the application of the petitioner either by accepting it or rejecting it. The Central Government cannot allow an uncertain situation to continue. If the seventh respondent is entitled to continue to stay in Indian territory and if he is entitled to an order granting permission extending his stay, there is no justification for the Central Government in failing to pass any order, nor fail to reject his application if he is not entitled to such permission.

38. It is open to the Central Government to gather all the facts relating to the activities and conduct of the petitioner and if in the opinion of the Central Government, the continued stay of the petitioner is not in the interest of the country, it is within the absolute rights of the Central Government to say so and to direct deportation of the seventh respondent. Failing to take such action in the event of any misconduct on the part of the petitioner/ 7th respondent would be improper.

39. Therefore, I am inclined to dispose of these writ petitions with the following observations:

(i) W.P. No. 13122 of 1994 is allowed and the Tamil Nadu Amendment Act 30 of 1994 to the Hindu Religious and Charitable Endowments Act 1959 is declared as ultra vires the Constitution;

(ii) In W.P. No. 13046 of 1998 respondents-1 to 3 are directed to pass appropriate orders in the context of the right of the seventh respondent to remain or continue to remain in Indian soil. Such orders shall be passed within a period of three months from the date of receipt of a copy of this order, after providing an opportunity to the seventh respondent to state his case regarding his request for permission to stay in Indian territory. In the event of the respondents coming to the conclusion that the seventh respondent is not entitled for any such remedy, the respondents shall pass appropriate orders directing the deportation of the seventh respondent forthwith.

(iii) No costs.

Connected W.P.M.P. No. 19909 of 1994 is closed.