Madras High Court
Arulmigu Angala Eswari Amman Temple vs The Commissioner on 30 September, 2015
Author: R.Mahadevan
Bench: R.Mahadevan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 30.09.2015
CORAM
THE HONOURABLE MR.JUSTICE R.MAHADEVAN
W.P(MD).No.20915 of 2013
and
M.P.(MD).Nos.1 to 3 of 2015
Arulmigu Angala Eswari Amman Temple,
Anaikulam Village,
Thiruchuzhi Taluk,
Virudhungar District,
rep.by the President of
Temple Administrative Committee ... Petitioner
Vs
1.The Commissioner,
Hindu Religious and Charitable Endowment Department,
Chennai.
2..The Assistant Commissioner,
Tamil Nadu Hindu Religious and Charitable Endowments
Department, Virudhungar.
3.The Executive Officer,
Arulmigu Chockanatha Swamy Temple,
Aruppukottai, Virudhungar District.
4.D.Prabhakaran
5.Murugan ... Respondents
(R.4 & R.5 impleaded vide order dated 09.06.2015 in M.P.(MD).No.1 of 2014).
Prayer: This Writ Petition has been filed under Article 226 of the
Constitution of India praying for an issuance of Writ of Certiorari to call
for the records relating to the impugned order dated 26.11.2013 in reference
number in Che.Mu.Na.Ka.No.2061/2006/A3 passed by the second respondent and to
quash the same.
!For petitioner : Mr.J.Bharathan for
M/s.T.R.Jeyapalam
^For Respondents Nos.1 & 2 : Mr.J.Gunaseelan Muthiah
Standing Counsel for HR&CE
For Respondent No.3 : Mr.P.Mahendran
For Respondents Nos.4&5 : Mr.Pon.Senthilkumaran
:ORDER
This writ petition has been filed for issuance of a Writ of Certioroari calling for the records relating to the impugned order dated 26.11.2013 in reference number in Che.Mu.Na.Ka.No.2061/2006/A3 passed by the second respondent and to quash the same.
2.The petitioner is the President of the Administrative Committee of the temple in question. It is averred that the temple is managed by a particular community of the people. The expenses incurred for the temple is borne by such community people. While so, on a telephonic compliant received from general public with regard to the handling of funds belonging to the Temple, the second respondent had inspected the temple and taken inventory of things available in the temple with the help of the poojari. It is the case of the petitioner that neither the official respondents nor the said poojari had informed about the inspection.
3.While so, on 16.12.2013, the petitioner as well as the members of the administrative Committee received a notice dated 16.12.2013 from the third respondent stating that he had been appointed as fit person of the petitioner temple through the impugned order of the second respondent dated 26.11.2013. On the same day, the third respondent had taken charge of the temple.
4.Further, the third respondent has directed the petitioner and other members of the Administrative committee to appear on 30.12.2013 before him for an enquiry. Therefore, questioning the order of the second respondent, dated 26.11.2013, the present writ petition has been filed.
5. The second respondent herein has filed a counter affidavit in which it is averred that the petitioner without invoking an alternative remedy available under Section 21 of the Act has come before this Court. Further, the impugned order came to be issued on the basis of telephonic complaint received from one Prabhakar and his group members with regard to the illegal collection of money. Thereafter, a report was called for from the Inspector, Hindu Religious and Charitable Endowment Department, who in turn, sent a report to the second respondent on 26.11.2013. Based on the said report, the Assistant Commissioner inspected the temple, where, two poojaris of the temple informed that originally two metal idols were available in the temple, now they are missing. A huge amount was collected under the pretext of renovation and the same was deposited in their personal accounts of the Administrative Committee Members. That is why, the third respondent was appointed as a Fit Person and asked the Members of the Administrative Committee to hand over all the belongings of the Temple to the fit person.
6. Further, on receipt of the notice, a letter was sent to the third respondent by the petitioner requesting 30 days time to hand over the temple materials after getting permission from the Committee. Having subjected himself to the enquiry, the petitioner is not entitled to move this Court under Article 226 of the Constitution of India. The enquiry notice dated 16.12.2013 also speaks about the charge taken by the third respondent in respect of the temple on 27.11.2013 at 11 a.m. The above said factual aspects were not denied in the subsequent reply dated 24.12.2013. The impugned order was passed based on the reports as well as personal inspection of the official respondents and therefore, there is nothing wrong in the impugned order.
7. In the counter affidavit filed by the third respondent, it is stated that even though the petitioner was aware that the hundi of the temple was sealed and a fit person was also appointed, he pleaded as if he and other Administrative Committee Members were unaware of the above said facts. In toto, the third respondent sails along with the second respondent herein.
8. A rejoinder affidavit has been filed by the petitioner in which it is stated that the appeal remedy under Section 21 of the Tamil Nadu Hindu Religious and Charitable Endowment Act could be availed only after the petitioner was put on notice and an enquiry was conducted thereof. However, the impugned order is passed in violation of the principles of natural justice. Before passing the impugned order, no show cause notice nor enquiry was conducted by the official respondents. Therefore, the availability of alternative remedy cannot be a bar for the petitioner temple to invoke the special original jurisdiction of this Court. Except the Achari Community, the persons belonging to other communities neither worshipping nor participating in the festivals of the temple. The said fact has not been denied by the second respondent in her counter affidavit.
9.Heard both sides.
10.Assailing the impugned order, the learned Counsel for the petitioner has raised the following grounds:-
(i) Before appointing a fit person or taking over the temple in question, neither the petitioner nor the members of the administrative committee of the temple ought to have put on notice. Therefore, there is violation of principles of natural justice in passing the impugned order.
(ii) The impugned order is virtually a non-speaking order and for arriving at such a drastic decision, no genuine reasons were stated in the impugned order.
(iii) There is no whisper in the impugned order, dated 26.11.2013 about the compliant received from the general public, but, in the subsequent notice of the third respondent dated 16.12.2013 alone, there is some whisper about the complaint.
11. The learned counsel for the petitioner has submitted that when the rights of the said Community people of Anaikulam Village to manage the temple had never been challenged by anybody and since they had been managing the affairs of the temple for more than 100 years, it is to be construed that they are the hereditary trustees managing the affairs of the temple.
12. The learned counsel has contended that as per Section 6(22) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 'Trustee' means any person or body by whatever designation known in whom or in which the administration of a religious institution is vested and includes any person or body who or which is liable as if such person or body were a trustee. As per the said definition, the petitioner can be a trustee of the temple. Further, it has been held in a number of decisions that the whole community can be regarded as trustee of the temple.
13. The learned counsel has argued that as per Section 6(11) of the said Act 'hereditary trustee' means the trustee of a religious institution, the succession to whose office devolves by hereditary right or is regulated by usage or is specifically provided for by the founder, so long as such scheme of succession is in force. It is pointed out that in the impugned order dated 26.11.2013 nowhere it is stated about the alleged telephonic compliant. More over, in the counter affidavit, it is not specifically stated that when the report was submitted by the Inspector. Further, a copy of the alleged report had not been served on the petitioner temple and its office bearers.
14. The learned counsel has continued that it is not correct to state that one D.Prabakar was available at that time and that he singed the proceedings dated 27.11.2013 for the simple reason that he never took part in the management and administration of the temple at any point of time. Further, no hundial was kept in the temple and the money collected by way of contributions from the members of the community are properly accounted and the same was approved by the general body.
15. Further, the learned counsel has submitted that the respondents have no jurisdiction to interfere with the management and administration of the petitioner temple. In the notice dated 16.12.2013, the respondents have mentioned the names of all the four members of the administrative committee which clearly shows that the Aachari Community people of Anaikulam Village have been administering the temple. Since the impugned order was passed in violation of the principles of natural justice without affording an opportunity of being heard, the same is liable to be set aside.
16.In support of his contentions, he has placed reliance upon the following decisions of this Court:-
(i)Sivasubramanian Vs. The Government of Tamil Nadu by Secretary, Hindu Religious and Charitable Endowment Dept (2006 (2) CTC 49).
(ii)Sri Devi Ellamman Paripalana Sangam Vs The Assistant Commissioner, Hindu Religious and Charitable Endowment Board (2010 (2) CWC 915).
(iii)Arul migu Athanooramman Podarayasamy Vs. The Assistant Commissioner, Hindu Religious and Charitable Endowment (Admn) Department, Erode & Others (CDJ 2012 MHC 3783).
(iv)V.Muthukrishnan Vs. The commissioner, Hindu Religious and Charitable Endowment Board (2014 (2) CWC 374).
(v) P.R.Thirupathy and others Vs. The commissioner, Hindu Religious and Charitable Endowment Board, Chennai and others (2015-3-L.W.106).
17. On the aforesaid submissions, the learned counsel for the respondents were heard.
17a. I have considered the submissions of either side and perused the materials available on record.
18. It is the case of the petitioner that without any notice or show cause notice, the second respondent has appointed the Executive Officer of the Arulmigu Chokkanathaswamy Temple, Aruppukottai, as fit person under Section 49(1) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959.
19. A perusal of the impugned order reveals no reasons for the removal of the President of the Administrative committee of the Arulmigu Angala Parameswari Amman Temple, Anaikulam, Thiruchzuli Taluk.
20. Further, a perusal of the records shows that a notice, dated 16.12.2013 calling upon the petitioner and other three administrative committee members, namely, Anbalagan, Dhanasekar, and Ramaraj, to appear for an enquiry to be held on 30.12.2013 at 11.00 a.m. in the office of the Executive Officer, Arulmigu Chokkanathaswamy Temple, Aruppukottai, in respect of the allegation of misappropriation of funds during the collection of the same for Kumbabhishekam and to handover the cash, income and expenditure accounts, jewels, and Undial key to the fit person.
21.In the said notice, it is stated as under:-
?,j;jpUf;nfhapy; eph;thfk; bjhlh;ghf Vw;gl;Ls;s rl;lk; xG';F gpur;rpidia jtph;f;Fk; bghUl;L mwepiya rl;lk; gphpt[ 49(1) d;go eph;thfj;ij ftdpj;J tUtjw;F mUg;g[f;nfhl;il mUs;kpF brhf;fehjrhkp jpUf;nfhapy; bray; mYtyiu jf;fuhf (Fit Person) epakdk; bra;J cj;jutplg;gLfpwJ/?
22/The reason shown in the notice for the appointment of the Executive Officer of the Arulmigu Chokkanathaswamy Temple, Aruppukottai, as Fit Person is the law and order problem. But a perusal of the records shows nothing about the law and order problem or occurring of any untoward incident during the festival seasons. So the reason shown in the notice is without any basis.
23.Further, though it is the case of the petitioner that the said Arulmigu Angala Parameswari Amman Temple, Anaikulam, Thiruchzuli Taluk, has been managing by the Administrative Committee of the temple and the petitioner is the President of such Committee, which is also evident from the notices of Maha Sivarathiri and Kumbabhishekam, the allegation of the respondents that there was no such committee being managed the administration of the temple cannot be accepted. As alleged by the respondents, if the above said persons are not the members of the Administrative Committee, then what is the necessity for sending the notice to the aforesaid persons alone and calling them for enquiry and therefore, this Court is of view that there was an Administrative Committee and the petitioner is the President of such Committee.
24.As rightly contented by the learned counsel for the petitioner, if there is any allegation or complaint against either the President or the members of the Administrative Committee, then it is for the respondents to issue notice calling for an explanation or for an enquiry and based on that enquiry, if the explanation given by them is not satisfactory and based on the report submitted by the third respondent, the second respondent can proceed in accordance with law. However, what happened in the case on hand, is quite contra. There is absolutely nothing in the impugned order for appointing the Fit Person invoking the provisions of Section 49(1) of the Tamil Nadu Hindu Religious Act, 1959.
Virtually, it is nothing but a non speaking order.
25.In N. Sivasubramanian vs. The Government of Tamil Nadu, rep. by its Secretary , Hindu Religious and Charitable Endowment Department, Fort St. George, Chennai-9 and others (2006 (2) CTC 49), a Division Bench of this Court has observed as under:-
11. Section 45 of the Act, even though empowers the second respondent to pass an order appointing Executive Officer, that power has to be exercised in terms of the policy of the Act. The said power shall be exercised coupled with a duty. Therefore it is the duty of the second respondent to see as to whether the Executive Officer has to be appointed for better and proper administration of the group of temples.
12. As pointed out above, no doubt the second respondent is empowered to appoint Executive Officer under section 45(1) of the Act. But to exercise the said power, there must be a maladministration by the trustees and to find out whether there is any maladministration or not, it is the duty of the second respondent to issue notice to the trustees, hear their objections and only after prima facie satisfaction of the maladministration, the second respondent is empowered to exercise the power under section 45(1) of the Act and appoint the Executive Officer.
13. Here in this case, based on the complaint/representation given by the 6th respondent, the impugned order is passed at the instance of the 6th respondent, appointing 5th respondent as Executive Officer, but without issuing notice to the petitioner or other trustees. A perusal of the impugned order amply establishes the fact that the second respondent has not issued any notice to any of the trustees including the petitioner. The administration of the temples, particularly the denominational temples, by the trustees is a valuable right and the same cannot be lightly divested under the guise of exercising power under section 45(1) of the HR&CE Act. The impugned order having civil consequences against the petitioner and other trustees, the second respondent is bound to give notice to the petitioner and other trustees and only after hearing their objections, if any, the Executive Officer can be appointed, if the explanation submitted by the trustees are not satisfied.
15. In the case on hand, the second respondent without giving notice to the petitioner or to other trustees straight away issued the impugned order appointing the 5th respondent as Executive Officer vesting all the powers of the trustees, which action has got civil consequences. As held by the Apex Court in the decision cited supra, when the rights of the parties are likely to be affected by virtue of his action in appointing the Executive Officer, it is incumbent on the part of the second respondent to issue notice to them, for the compliance of principles of natural justice. Therefore, we hold that the failure on the part of the second respondent in not issuing notice to the petitioner as well as to other trustees vitiates the impugned order dated 17.3.2005
26.In A/m.Athanoorammal Podarayasamy, Rep. by its President K.Anbarasu, Kurukkal Palayam, Thirupur District vs. Assistant Commissioner, HR & C.E.(Admn.) Dept. Erode and others (CDJ 2012 MHC 3783), the learned Single Judge of this Court has laid down as under:-
9. The contention of the learned counsel is that there were allegations of mismanagement of funds by the Trust. Therefore, it was felt necessary to appoint a fit person under Section 49 for the better management of the temple.
10. The reading of Section 49 shows, that Joint Commissioner could exercise powers under Section 49, in the interest of public generally, keeping in view the income and the properties of religious institution, taking in view the number of worshippers and importance of religious institution as a pilgrim centre or any other matter as may be prescribed. However, the reading of impugned order does not show any reason as stipulated, to appoint the fit person vide impugned order. The contention of learned counsel for respondent No.1 that appointment has been made as there were allegation of misuse of funds, cannot be accepted. It is well settled law that a quasi-judicial order should be self speaking order giving reasons for passing of the order. The defect in order cannot be cured by filing counter to justify the order.
11. The impugned order is a non-speaking order as it does not disclose any ground as per Section 49 for appointing a fit person. The impugned order thus is contrary to provisions of statute, the alternative remedy of appeal therefore cannot be a bar to maintainability of this writ.
27.The learned Single Judge of this Court, while dealing with an identical issue, has observed in P.R. Thirupathy and others vs. The Commissioner, Hindu Religious and Charitable Endowment, Chennai-34 and others (2015-3-L.W.106), as under:-
10. It is true that the power under Section 45(1) of the Act, as held by the Hon'ble Division Bench is a drastic power. However, the power exercisable under Section 49(1) is only for the purpose of an interim arrangement.
Therefore, the rigour of the provision is not to the extent of the power conferred under Section 45(1). Nevertheless, while exercising power under Section 49(1) cannot be made in a whimsical manner, but the authority should be satisfied that in the interest of the temple and the public, a fit person is required to be appointed to protect the temple, its properties, its income and other matters.
12. Further, the order appointing a fit person should be a speaking order and disclose reasons as to why the authority namely, Assistant Commissioner, was of the opinion that the affairs of the temple were not conducted in accordance with the provisions of the Act and there was a need for immediate appointment of a fit person. In the impugned order, there is a reference to a report of the Inspector, H.R.&C.E., Bhavani, dated 24.06.2013. The contents of the report have not been referred to in the impugned order nor does the impugned order state that the report was the basis for appointment of the fit person. It may not be necessary for the Assistant Commissioner to pass an elaborate order, but the order should speak for itself and give reasons as to why in the opinion of the Assistant Commissioner, the power under Section 49(1) of the Act was exercisable. In the absence of reasons for appointment of the fit person, the impugned order has to be necessarily held to be a non- speaking order and therefore, an order passed in violation of the principles of natural justice.
28.In the case on hand, the second respondent without giving notice to the petitioner or to other trustees straight away issued the impugned order appointing the 3rd respondent as fit person vesting all the powers of the trustees, which action has got civil consequences. As held by the Apex Court in the decision cited supra, when the rights of the parties are likely to be affected by virtue of his action in appointing the Executive Officer as fit person, it is incumbent on the part of the second respondent to issue notice to them, for the compliance of principles of natural justice. Therefore, this Court is of view that the failure on the part of the second respondent in not issuing notice to the petitioner as well as to other trustees vitiates the impugned order dated 26.11.2013.
29.Further, the order appointing a fit person should be a speaking order and should disclose the reasons as to why the authority namely, Assistant Commissioner, was of the opinion that the affairs of the temple were not conducted in accordance with the provisions of the Act and there was a need for immediate appointment of a fit person. In the impugned order, there is absolutely no reason has been shown for appointing the third respondent as fit person. It may not be necessary for the Assistant Commissioner to pass an elaborate order, but the order should speak for itself and give reasons as to why in the opinion of the Assistant Commissioner, the power under Section 49(1) of the Act was exercisable. In the absence of reasons for appointment of the fit person, the impugned order has to be necessarily held to be a non-speaking order and therefore, the order impugned was passed in violation of the principles of natural justice and hence, the same is set aside.
For the aforesaid reasons, the writ petition deserves to be allowed and accordingly, the same is allowed. However, there will be no order as to costs. Connected M.Ps. are closed.
To
1.The Commissioner, Hindu Religious and Charitable Endowment Department, Chennai.
2..The Assistant Commissioner, Tamil Nadu Hindu Religious and Charitable Endowments Department, Virudhungar.
3.The Executive Officer, Arulmigu Chockanatha Swamy Temple, Aruppukottai, Virudhungar District.
.