Madras High Court
R.Jeyakumar vs The Joint Commissioner on 4 August, 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 04.08.2014 CORAM THE HONOURABLE MR.JUSTICE S.NAGAMUTHU W.P.(MD)No.15572 of 2012 and M.P.(MD)Nos.1 to 3 of 2012 and 1 of 2013 and W.P.(MD)No.15573 of 2012 and M.P.(MD)Nos.1 to 3 of 2012 and 1 of 2013 W.P.(MD)No.15572 of 2012 R.Jeyakumar ... Petitioner Vs. 1.The Joint Commissioner, Hindu Religious and Charitable Endowment Board, Madurai. 2.The Assistant Commissioner, Hindu Religious and Charitable Endowment Board, Dindigul. 3.The Executive Officer / Fit Person, Arulmigu Kalakatheeswarar Thirukkovil, Dindigul. 4.A.Kuppusamy Raju 5.Rajendran @ Raja (Impleaded as per the order of this Court in M.P.(MD)No.1 of 2014 in W.P.(MD)No. 15572 of 2012) ... Respondents W.P.(MD)No.15573 of 2012: N.Karthikeyan ... Petitioner Vs. 1.The Joint Commissioner, Hindu Religious and Charitable Endowment Board, Madurai. 2.The Assistant Commissioner, Hindu Religious and Charitable Endowment Board, Dindigul. 3.The Executive Officer / Fit Person, Arulmigu Kalakatheeswarar Thirukkovil, Dindigul. 4.A.Kuppusamy Raju ... Respondents Writ Petitions filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorari calling for the records pertaining to the impugned order in Se.Mu.Na.Ka.No.5655/12/A1 dated 03.10.2012 on the file of the first respondent and quash the same as illegal. W.P.(MD)No.15572 of 2012 !For Petitioner : Mr.M.Ajmal Khan, Sr.Counsel for Mr.J.Lawrance ^For Respondents : Mr.VR.Shanmuganathan, Spl.GP for R1 and R2 Mr.S.Manohar for R3 Mr.R.G.Shankar Ganesh for R4 W.P.(MD)No.15573 of 2012 For Petitioner : Mr.M.Ajmal Khan, Sr.Counsel for Mr.J.Lawrance For Respondents : Mr.VR.Shanmuganathan, Spl.GP for R1 and R2 Mr.S.Manohar for R3 Mr.R.G.Shankar Ganesh for R4 Mr.K.Gopinathan for R5 :COMMON ORDER
Since in these two writ petitions, common issues are involved and since one and the same order is challenged, they were taken up together and disposed of by means of this common order.
2.The facts of the case would be as follows:
Arulmighu Chinna Muthalamman Temple situated at Ayyampalayam Village, Aathoor Taluk, Dindigul District, is a Hindu Temple governed by the Tamil Nadu Hindu Religious & Charitable Endowments Act, 1959. The Deputy Commissioner, Hindu Religious and Charitable Endowments Department, Madurai, by his Proceedings in O.A.No.37 of 1990, settled a Scheme under Section 64(1) of the Act. As per the said Scheme, the temple and its properties shall be administered by at least three persons, and not exceeding four persons, to be appointed as Trustees by the competent authority, from Rajam, Kailamaviliar, Vellalar, and Sattarm sects. The Trustees so appointed by the competent authority shall elect one among them as Chairman of Board of Trustees as per the provisions of the Act. The period of Trusteeship shall be three years from the date of election of the Chairman of Board of Trustees. Admittedly, the said temple has not been included in the list published under Section 46 of the said Act. The petitioners in both the writ petitions, and the fifth respondent in W.P.(MD)No.15572 of 2012 claim that they have been recognised as Trustees of the temple by the Department and they have been managing the affairs of the temple and its properties.
3.While so, the fourth respondent in both the writ petitions, viz. Kuppusamy Raju, made an application to the Joint Commissioner, Hindu Religious and Charitable Endowments Department, Madurai, on 18.06.2012 requesting the Joint Commissioner to appoint a fit person, since the petitioners herein were causing hindrance to the fourth respondent from administering the temple and its properties. Based on the same, the Joint Commissioner, by his Proceedings in Se.Mu.Na.Ka.No. 5655/12/A1 dated 03.10.2012, appointed the Executive Officer of Arulmighu Kalakatheeswarar Temple, Dindigul, as Fit Person for the said temple, until the Trustees are appointed as per the terms of the Scheme. The petitioners are aggrieved by the same. Therefore, they are before this Court with these writ petitions.
4.I have heard the learned Senior Counsel appearing for the petitioners, the learned Special Government Pleader appearing for respondents 1 to 3, and the learned counsel for the fourth respondent in both the writ petitions, and also the learned counsel for the fifth respondent in W.P.(MD)No.15572 of 2012. I have also perused the records carefully.
5.In these writ petitions, among other grounds, two main grounds are focussed. The first one is that though the impugned order does not mention the provision under which it has been passed, in the counter, it is stated tacidly that the order has been passed by the Joint Commissioner in exercise of his powers under Section 49 of the said Act. It is the contention of the petitioners that the power to appoint a Fit Person under Section 49 of the Act has been given only to the Assistant Commissioner and not the Joint Commissioner. Thus, according to the petitioners, the Joint Commissioner ought not to have exercised the power under Section 49 which is not conferred upon the Joint Commissioner. The next ground of attack is that the impugned order had been passed without affording any opportunity to the petitioners and thus the impugned order has grossly violated the principles of natural justice.
6.The learned counsel appearing for the official respondents 1 to 3 would submit that of course it is true that in paragraph-12 of the counter, it has been mentioned that the impugned order came to be passed in exercise of the powers conferred under Section 49 of the Act, but the said statement is erroneous. The learned Special Government Pleader would submit that as a matter of fact, the impugned order came to be passed in exercise of the powers conferred under Section 47 of the Act by the Joint Commissioner. The learned Special Government Pleader would further submit, by referring to the counter, that since the petitioners have not been appointed as Trustees in terms of the Scheme, in order to administer the affairs of the temple and its properties, it was necessitated for the Joint Commissioner to exercise his power under Section 47 of the Act. Thus, according to the learned Special Government Pleader, the impugned order has been legally passed under Section 47 of the Act, which will be in force until the Trustees are appointed in terms of the Scheme, by the competent authority. Regarding affording opportunity to the petitioners, the learned Special Government Pleader appearing for respondents 1 and 2 would submit that the petitioners have got no locus standi to expect any notice from the Joint Commissioner, since they were not at all recognised as Trustees of the temple. Therefore, the question of affording opportunity did not arise. Thus, according to the learned counsel for the respondents 1 to 3, there was no violation of principles of natural justice. For all these reasons, the learned counsel for the official respondents 1 to 3 would pray for dismissal of the writ petitions.
7.The learned counsel for the fourth respondent would submit that as per the Scheme, the fourth respondent was originally appointed as Trustee, but during the relevant period, he was not appointed as Trustee by the competent authority. However, he would submit that the fourth respondent continued to administer the temple and its properties, and since the petitioners herein and the fifth respondent in W.P.(MD)No.15572 of 2012 caused interference in the administration of the temple and its properties, he had to make an application to the Joint Commissioner requesting for appointment of a fit person in the larger interest of the temple. Thus, according to the fourth respondent, the impugned order does not require any interference at the hands of this Court.
8.The learned counsel for the fifth respondent in W.P.(MD)No.15572 of 2012 would adopt the arguments advanced by the learned Senior Counsel Mr.M.Ajmal Khan, appearing for the petitioners.
9.I have considered the above submissions and I have also perused the records carefully.
10.At the outset, I should say that when a Statutory Authority passes an order in terms of a Statute, it is expected of, from the said authority to mention in the order as to what is the power that is exercised by him, while passing the said order. Unfortunately, in this connection, the impugned order does not spell out as to what was the power conferred, under what provision, which the Joint Commissioner had exercised.
11.In the counter filed by the Joint Commissioner in paragraph-12, it is categorically stated that he had exercised the powers conferred upon him only under Section 49 of the Act. Though the learned counsel for respondents 1 to 3 would submit that it is an incorrect statement, let me now examine whether under Section 49, such power has been conferred upon the Joint Commissioner and whether he could have passed the impugned order in exercise of such power. Section 49(1) of the Act reads as follows:
?Power of Assistant Commissioner to appoint trustees and fit persons:
49.(1)In the case of any religious institution which is not included in the list published under Section 46 and is not a religious institution notified or deemed to have been notified under Chapter VI of this Act, the Assistant Commissioner shall have the same power to appoint trustees including fit persons or constitute a Board of Trustees as is vested in the Government, the Commissioner or the Joint Commissioner or the Deputy Commissioner in the case of a religious institution referred to in clause (a) of sub-section(1) or in sub-section(2) as the case may be, of section 47:
Provided that the Board of Trustees constituted under this sub-section shall consist of three persons appointed by the Assistant Commissioner from among the panel of names of persons sent by the District Committee concerned under sub-section (4) of Section 46-A:
Provided further that in addition to the trustees appointed by the Assistant Commissioner under this sub-section, the Government may nominate two persons who are qualified for appointment as trustees under this Act as members of the said Board of Trustees, having regard to the following matters, namely.-
(a)the interest of the public generally;
(b)the income and the properties of the religious institution;
(c)the number of worshippers and importance of the religious institutions as a pilgrim centre; and
(d)such other matters as may be prescribed:
Provided also that not withstanding anything aforesaid in this sub- section, the Assistant Commissioner may, in the case of any such religious institution which has no hereditary trustee, appoint a single trustee.?
12.A plain reading of Section 49(1) of the Act, would go to show that it empowers only the Assistant Commissioner to appoint the Trustees and Fit Persons. There is no power conferred by this provision, upon the Joint Commissioner to appoint either the Trustees or Fit Persons. Therefore, as rightly pointed out by the learned counsel for respondents 1 to 3, the impugned order would not have been passed under Section 49 of the Act at all.
13.The contention of the learned Special Government Pleader is that the impugned order had been passed in exercise of the powers conferred upon the Joint Commissioner under Section 47 of the Act. Section 47(1) of the Act reads as follows:
?Trustees and their number and term of offices:
47.(1)(a).Where a religious institution included in the list published under section 46 or in respect of which the Assistant Commissioner has no power to appoint trustees, has no hereditary trustee,-
(i)in cases falling under clause(i) of section 46 the Joint Commissioner / Deputy Commissioner;
(ii)in the case of falling under clause(ii) of section 46, the Commissioner; and
(iii)in the case of falling under clause(iii) of section 46, the Government.
shall constitute a Board of Trustees.
Provided that the Board of Trustees constituted under items (i) and
(ii) of the clause shall, subject to the provisions of clause (c) consist of three persons appointed by the Joint Commissioner or Deputy Commissioner or the Commissioner, as the case may be, from among the panel of names of persons, sent by the District Committee concerned under sub-section (4) of section 46-A of whom one shall be a member of the Scheduled Castes or Scheduled Tribes:
Provided further that in addition to the persons appointed by the Joint Commissioner or Deputy Commissioner or the Commissioner under items (i) or
(iii) of this clause, as the case may be, the Government may nominate two persons who are qualified for appointments as trustees under this Act, as members of the said Board of Trustees, having regard to the following matters, namely.-
(a)the interest of the public generally;
(b)the income and the properties of the religious institution;
(c)the number of worshippers and importance of the religious institutions as a pilgrim centre; and
(d)such other matters as may be prescribed:
(b)in respect of all the incorporated and unincorporated Devaswoms in the transferred territory, the Government shall constitute a single Board of Trustees;
(c)Every Board of Trustees constituted under clause(a) or clause (b) shall consist of not less than three and not more than five persons of whom one shall be a member of the Scheduled Castes or Scheduled Tribes:
Provided that the Government, the Commissioner, the Joint Commissioner or Deputy Commissioner as the case may be, may, pending the constitution of such Board of Trustees, under this sub-section, appoint a fit person to perform the functions of the Board of Trustees.?
14.According to this provision, the Joint Commissioner has been empowered to make appointment of Trustees and also as per the proviso, a Fit Person. The question is, such power can be exercised in respect of what temples. Sub-Section (1) of Section 47 clearly spells out that the Joint Commissioner or the Deputy Commissioner can make appointment of Trustees, including a Fit Person in respect of the temples falling in Clause (i) of Section 46 of the Act. Section 46 states that the Commissioner shall publish, in the prescribed manner, a list of religious institutions whose annual income, as calculated for the purposes of the levy of contribution under sub-
section (1) of section 92. Thus, the power under Section 47(1)(a) can be exercised by the Joint Commissioner only in respect of a temple which has been included in the list published by the Commissioner under Section 46 of the Act. In the instant case, admittedly, and as it has been tacitly stated in the impugned order itself, the temple in question has not been included in the list published under Section 46 of the Act. Therefore, in respect of the temple in question, which has not been included in the list under Section 46 of the Act, the Joint Commissioner has got no power at all to appoint either the Trustees or the Fit Persons. Therefore, I hold, on considering the arguments of the learned Special Government Pleader that the impugned order has been passed in exercise of the powers under Section 47(1) of the Act, that the Joint Commissioner has no such power. Therefore, the impugned order is wholly without any jurisdiction.
15.At this juncture, let me refer to Section 50 of the Act, which reads as follows:
?Power under Sections 47, 49 and 49-A to be exercisable notwithstanding provisions in scheme:
50.The power to appoint trustees under section 47 or section 49 or section 49-A shall be exercisable notwithstanding that the scheme, if any, settled, or deemed under this Act to have been settled for the institution contains provision to the contrary.?
16.This provision would indicate that the power under Section 47 or Section 49 shall be exercisable notwithstanding the scheme, if any, settled for the institution contains provision to the contrary.
17.Now, as per the terms of the Scheme, the Trustees shall be appointed by the competent authority. As per Section 49 of the Act, since the petitioner temple has not been included in the list published under Section 46, the competent authority for making appointment of Trustees in terms of the Scheme, is only the Assistant Commissioner. Notwithstanding the terms of the Scheme, as clarified under Section 50 of the Act, the Assistant Commissioner has got powers to appoint a Fit Person, pending the appointment of Trustees by following the procedure established under the Act as well as in the Scheme. In the case on hand, the Assistant Commissioner has not exercised the power under Section 49, probably because the Assistant Commissioner had not taken the task of appointing the Trustees of the temple in terms of the Scheme. For these reasons, I have to necessarily hold that the impugned order has been passed by the Joint Commissioner without jurisdiction.
18.Turning to the second limb of the argument of the learned Senior Counsel appearing for the petitioners, I find every force in the same. As is seen from Page-79 of the typed set of papers, which is the Hundial Assortment Register, the petitioners, fourth respondent, and the fifth respondent in W.P.(MD)No.15572 of 2012, were all allowed to participate at the time of opening of hundial in the capacity of Trustees of the temple. Even in the impugned order, it is stated that Fit Person shall take over the management of the temple and its properties only from the fourth respondent. It is not known as to how the management of the temple as well as Trustees were allowed to be in the hands of the fourth respondent or in the hands of the petitioners or in the hands of the fifth respondent in W.P.(MD)No.15572 of 2012, when there was no order appointing any of these people as Trustees of the temple in terms of the Scheme. When the impugned order itself states that the temple was under the administration of the fourth respondent and since the Hundial Assortment Register states that the petitioners and the fifth respondent in W.P.(MD)No.15572 of 2012 were also the Trustees of the temple, before passing the impugned order, on the application made by the fourth respondent, the Joint Commissioner ought to have issued notice to the petitioners, as it results in civil consequences and also it attaches stigma of their character. On this ground also, the petitioners are bound to succeed.
19.In the result, the writ petitions are allowed with the following directions:
1)The impugned order is set aside, and the official respondents stands in the original position as it stood as on 03.10.2012 in respect of the management of the affairs of the temple and its properties;
2)The second respondent shall take steps forthwith to appoint the Trustees in terms of the Scheme and complete the said process within a period of three months from today;
3)It is clarified that pending such appointment, by following the procedure established and affording sufficient opportunity to all the interested parties, it will be open for the Assistant Commissioner to appoint a Fit Person if it is legally warranted, in the interest of the temple and its properties;
4)It is further directed that the parties shall cooperate with the Assistant Commissioner for completion of the task of appointing the Trustees within the time stipulated;
5)The Assistant Commissioner shall take every endeavour to complete the task within the time stipulated, without approaching this Court for any extension of time.
20.Consequently, the connected miscellaneous petitions are closed. No costs.
Index : Yes/No 04.08.2014 Internet : Yes/No KM To 1.The Joint Commissioner, Hindu Religious and Charitable Endowment Board, Madurai. 2.The Assistant Commissioner, Hindu Religious and Charitable Endowment Board, Dindigul. 3.The Executive Officer / Fit Person, Arulmigu Kalakatheeswarar Thirukkovil, Dindigul. S.NAGAMUTHU, J. KM W.P.(MD)No.15572 of 2012 and M.P.(MD)Nos.1 to 3 of 2012 and 1 of 2013 and W.P.(MD)No.15573 of 2012 and M.P.(MD)Nos.1 to 3 of 2012 and 1 of 2013 04.08.2014