'Not Secular Money': Madras High Court Restrains HR&CE Dept From Establishing New Colleges

The Bench also made it clear that functioning of the already existing four educational institutions set up by the department will be subject to the court's final verdict.

For the time being, the bench has asked the State to ensure introduction of a subject on Hindu religion, in accordance with Section 66 of Tamil Nadu Hindu Religious & Charitable Endowments Act, 1959, on a regular basis, within one month, in the colleges already established at Kolathur in Chennai, Tiruchengode in Namakkal, Oddanchatram in Dindigul and Vilathikulam in Toothukudi. 

"It is also noted that at the 4 colleges that are ready to be opened, BBA, BCom and similar courses are offered without there being any regular class on religious instructions. The condition precedent for colleges to be opened is that there must be express instruction in Hindu religion. If such course is not introduced within one month of the beginning of college concerned, its functioning cannot be continued. "

The petitioner, T. R Ramesh, approached the High Court challenging a GO issued by the Higher Education Department of Tamil Nadu Government for opening eight private colleges by utilising temple funds.

Arguments

Temple funds can't be diverted in absence of Trustees

The petitioner, appearing in person, argued that a mere policy decision made by a Minister on the floor of the Assembly does not automatically confer upon the government the authority to divert temple funds.

He argued that the exercise of opening private colleges couldn't be allowed when trustees were non-existent for those temples; it is the trustees alone who have control over the funds and properties of temples.

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He referred to Section 36 of the Tamil Nadu Hindu Religious And Charitable Endowments Act, 1959, which talks about the utilisation of surplus funds accumulated by temples. He argued that the cumulative effect of Section 36 conditionally allows the setting up of educational institutions using surplus funds, provided that such proposition must come from the trustees themselves. Conveying such a proposition to the Commissioner for Hindu Religious Institutions and Charitable Endowment Department is necessary for it to carry.

On the contrary, the Commissioner doesn't possess the power to invoke Section 36 by himself to set up any educational institutions, the petitioner added.

Since the temples involved in the case are without any trustees, even if certain 'fit persons' are temporarily fulfilling the duties meant to be discharged by trustees, these 'fit persons' do not have the right to 'alienate temple property', the petitioner submitted.

Temple funds can be used for imparting education on Hindu religion

The Petitioner contended that while such surplus funds could be used for creating educational institutions, it is dependent on the caveat that the prominent subject must be pertaining to a course on Hindu Religion. Such subject must relate to a denomination or sect pertaining to the relevant temple. A course related to Hindu Religious Institutions is mandatorily required as part of the main curriculum and not an incidental subject.

He referred to Section 66 of the Act allows the funds of a temple to be diverted for setting up educational institutions if the "purpose of a religious institution has from the beginning been, or has subsequently become, impossible of realisation".

Advocate General S Shanmuga Sundaram relied on Section 97 of the Act and the concept of Common Good Funds to argue that any temple funds available with HR & CE Department by such means can be utilised for setting up colleges.

The petitioner, on the other hand, argued that such surplus funds can be primarily used only for restoration, renovation and maintenance of temples under the control of HR & CE Department. The petitioner submitted that Section 97 was envisaged to help out the needy temples in short of funds, and only when that need vanishes can the surplus funds now in Common Good Fund will be utilised for colleges.

Findings

The court, after hearing the arguments from both sides, observed that the appointment of a 'fit person', in the absence of a board of trustees, is only a "stop-gap measure". Decision making authority in temple administration is only born out of a Board of Trustees so appointed, the court noted.

It took note of Rule 14 of Functioning of Board of Trustees Rules, 1960 which states that all matters relating to the administration of the religious institution shall be decided at the meetings of the Board of Trustees.

" For the last decade and more, the State has not taken any appropriate steps to appoint trustees in temples under HR & CE Department" , the court noted in its order. 

Even the District Level Committees primarily responsible for creating a panel of names qualified to be appointed as trustees has not been constituted under Section 7A of Hindu Religious and Charitable Endowments Act, 1959, the court observed.

The court was convinced that the limited tenure of the political party currently in power was irrelevant to the facts of the case.  According to the Bench, as far as it is concerned, it is the State of Tamil Nadu that is responsible for appointing trustees and it has not taken any steps for so long.

AG made a submission that since Section 47 of the Act makes a remark about 'fit persons' substituting trustees pending the constitution of such board, they are also empowered to carry out or discharge all the functions that the trustees are originally authorised to do.

" Even if AG's submissions are taken at face value, the use of Common Good Fund under Section 97 of Act instead of following the procedure under Section 36 and Section 66 of the Act by bulldozing through the proposal raises the question as to whether the transfer of funds by temples to CGF was voluntary or not. Section 97 speaks about voluntary transfer. It implies that administrators/ trustees could plan out activities of temple, make provisions for its upkeep and running, and if satisfied that funds are in excess of actual requirement, which may then be in full or part transferred to Common Good Fund."

The court observed that the probability of voluntary transfer is vitiated by the lack of Board of Trustees for 11 years, during which period the quantum of funds voluntarily transferred is doubtful since it couldn't have rightfully taken place. If the transfer is done by 'fit persons' under the control of the Commissioner/ Government, the transfer of funds cannot be seen as voluntary, the court recorded in its order. Even if a fit person may have been appointed on an ad hoc basis for a decade, they cannot be considered to have more rights than that of a caretaker.

The court also examined the petitioner's argument that the entire process has been done in such a hurry that none of the safety compliances of premises that houses students has been checked by the Government. Hence, the court asked the AG to get the appropriate authorities to examine the same and that too well before any training attempted to be imparted in the four colleges.

"Apart from the four colleges mentioned herein, other proposed colleges will not be set up and no steps in such regard will be taken without the express special leave of the court. In other words, educational institutions on the basis of Sections 36, 66 or 97 of the Act shouldn't have been instituted until trustees have been put in place and leave of the court is obtained", the court stipulated in its order.

Once the counter-affidavits are filed, the petitioner has been granted a week's time to file the rejoinder. The matter will be taken up next after five weeks from today.

Case Title: T. R. Ramesh v. The State Of Tamil Nadu And 2 Others.

Case No: WP/24156/2021 (PIL)

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