Madras High Court
The Executive Officer vs Ponnalagesan on 12 April, 2012
Author: S.Palanivelu
Bench: S.Palanivelu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 12/04/2012
CORAM
THE HONOURABLE MR.JUSTICE S.PALANIVELU
Criminal Revision Case(MD)No.689 of 2007
The Executive Officer,
Veerappur Sri Kannimaramman Vahayara Temple
Nallampillai Village, Manapparai Taluk,
Trichirappalli Distgrict,
having office at
Arulmigu Rethinagriswarar Thirukoil Devasthanam
represented by its Executive Officer
at Sivayam, Kulithalai Taluk,
Karur District. ... Petitioner
Vs.
1.Ponnalagesan
2.Soundarapandian
3.Krishna Vijayan
[all the Hereditary Trustees of
Veerappur Sri Kannimaramman Vahayara Temple
Nallampillai Village, Manapparai Taluk,
Trichirappalli District.] ... Respondents
PRAYER
Criminal Revision Petition filed under Section 397 r/w 401 of the Code
of Criminal Procedure, against the order dated 17.7.2007 made in C.M.P.No.2049
of 2007 on the file of the Judicial Magistrate, Manaparai.
!For Petitioner ... Mr. K.S. Sankhar Murali
^For Respondents... Mr. V. Raghavachari for
M/s. T. Srinivasa Raghavan
[for R1 to R3]
Mrs. Uma Ramanathan
[for R4 and R5]
M/s. AL. Gandhimathi
[for R6 and R7]
:ORDER
1.The following are the contentions raised in the petition filed by the revision petitioner under Section 101 of Tamilnadu Hindu Religious and Charitable Endowments Act, 1959 (hereinafter referred to as 'Act'):-
1.(a) Veerappur Arulthiru Kannimar amman Vahayara Temple, Nallampillai Village, Manapparai Taluk, Trichirappalli Distrit is a listed temple coming under the jurisdiction of Joint Commissioner, HR & CE, Administration Department, Srirengam, Tiruchirappalli. A scheme decree was passed in O.S.No.125 of 1945 on the file of the Sub-Court, Tiruchirappalli for better management and administration of the said temple on 27.11.1946. As per the terms of the scheme decree, the hereditary trustees from the specified family are administering and maintaining the temple.
1.(b) In 1994 certain irregularities were noticed by the then Assistant Commissioner, HR & CE, Tiruchirappalli, during the tenure of M/s.R.Chinnoba Kambaya Naicker and P.Muthukrishna Kamboya Naicker and after enquiry, the Commissioner of HR & CE (Administration), Madras, passed a proceedings in R.Dis.16371/70/21.12.1974 appointing the Executive Officer of Arulmigu Rathinagiriswarar Temple, Kulitalai as Executive Officer of Veerappur Sri Kannimar amman Vahayara Temple. In the appointment order, the powers and duties of the Executive Officer and the Hereditary Trustees were defined as mentioned under section 45(1) of the Act. The said appointment order was challenged by the then Hereditary Trustees in W.P.No.1352 of 1975 and the same was dismissed as not maintainable on 05.07.1977. No appeal was preferred. Hence the order of appointment dated 21.12.1974 has become final and conclusive.
1.(c) The then Deputy Commissioner, HR & CE (Administration) Tiruchirappalli by his proceedings Na.Ka.11051/88/A1 dated 21.5.1989 directed the petitioner to operate a second bank account in his name and the said order was challenged by the then hereditary trustees of Veerappur Sri Kannimar amman Temple in W.P.No.9023 of 1989 on the file of the High Court, Madras and stay was obtained. The then Executive Officer filed an application to vacate the interim stay and the same was allowed and the stay was vacated. A writ appeal in W.A.No.111 of 1993 was preferred, but the same was dismissed. Thereafter, W.P.No.9023 of 1989 was also dismissed on 13.07.1998.
1.(d) The then Executive Officer of the petitioner temple by his letter dated 11.02.1993 directed the hereditary trustees/the respondents herein to hand over the accounts, receipts, cash bills etc., The respondents filed a suit in O.S.No.51 of 1993 on the file of the District Munsif Court, Manapparai against the petitioner for permanent injunction restraining the petitioner from interfering with the respondents' peaceful management and administration of Veerappur Sri Kannimar amman Vahayara Temple including celebration of annual festival and collection of all benefits incidental to conduct of festival under the pretext of handing over the possession of suit temple without recourse to section 101 of the Act and in circumvention of principles governing equity and natural justice or in any manner whatsoever and filed I.A.No.117 of 1993 and on enquiry the same was allowed on 16.3.1993. Thereafter the suit was also decreed ex-parte.
1.(e) The petitioner was duly appointed as Executive Officer of the temple and legally entitled to obtain possession of its records, accounts etc., as per the appointment order dated 21.12.1974. The temple is very famous for its Masi Festival season which concluded very recently. During the Masi festival season the Hundial in the temple can easily fetch more than 7 lakhs of rupees by way of vacant site lease amount. The respondents have not submitted the true statement of accounts so far. They are misusing the funds of the temple for their personal use. Hence, an order may be passed in favour of the petitioner directing the respondents to hand over the possession of Veerappur Sri Kannimar amman Vahayara Temple, including records, accounts etc., to the petitioner.
2.The following are the allegations available in the counter filed by the respondents:
2.(a) The provision under Section 101 of the Act envisages filing of the petition by one who has been appointed by an Authority competent to appoint a Trustee (Executive Officer) for an institution when there arises vacancy on account of suspension of Trustees an Executive Officer as fit person to take charge of the institution, that under Section 101 of the Act, the words "such person is resisted in, or prevented from obtaining possession of the religious institution or of the records, accounts and properties thereof by a trustee, office holder or servant of the Religious institution who has been dismissed or suspended from the office or is otherwise not entitled to be in possession or any person etc". Hence, it must be only from those whose office has been deprived from that person must be the person against whom this petition should have been filed and that the section further proceeds to say that "not being a person claiming in good faith, to be in possession on his own account of person not being such trustee, office holder or servant", hence these respondents as holding their hereditary right in succession not dismissed or suspended can not be persons from whom the claim can be made and that they are holding in good faith their hereditary right holding the office.
2.(b) The order of the Commissioner HR & CE passed in the year 1974 is not also an absolute order, entitling the petitioner to be the exclusive authority to take possession of the institution, that the order envisages allocation of duties of the hereditary trustees and that of the Executive Officer, that the then Trustees filed a writ petition in W.P.No.1352 of 1975 against this proceedings and the same was dismissed because there is alternative remedy open to the petitioner and writ jurisdiction under Article 226 cannot be invoked and that the dismissal order was not on merits.
2.(c) On 21.5.1989, the Deputy Commissioner, Trichirappalli on 21.5.1989 directed the petitioner to operate a second account in his name and the said order was challenged by the then hereditary trustees in W.P.No.9023 of 1989 and obtained stay, that the petitioner filed application to vacate the stay and the stay was vacated by order dated 3.12.1992 and that the appeal against the same was also dismissed on 3.2.2003 and the writ petitioner was also dismissed on 13.7.1998, that in the meanwhile the petitioner issued notice in the year 1993 calling for handing over accounts of the temple stating that he has assumed charge suo motu but the respondent filed a suit in O.S.No.51 of 1993 that such a statement of self assumption of office is illegal and ultimately permanent injunction was granted by the District Munsif Manapparai and that the appeal filed by the petitioner was also dismissed.
2.(d) From the year 1974 till date the respondents are holding the administration as Hereditary Trustees and that the accounts maintained by them are audited, that contributions received and the inspection of the records are being checked at due times and so far no objection has been raised by any of the the officials of the HR & CE Department and that being the case the obsolete order of the year 1974 being periodically used for dragging these respondents to face unnecessary litigations, that all along the administration of the temple was well maintained and the accounts are being audited regularly and no blemish whatsoever been pointed out by the HR & CE Department or the Temple Audit Department, that no suspension order or dismissal order against any one of the hereditary trustees of the temple has so far happened and in such circumstances this move of the petitioner is unfortunate and hence the petition has to be dismissed with costs.
3.After hearing both sides and on scrutiny of the documents marked on either side, the learned Judicial Magistrate, Manapparai dismissed the petition filed by the revision petitioner observing that the petitioner has no competency to maintain the petition. Hence, this revision is before this Court .
4. Point for consideration:
1. Whether the Petitioner/Executive Officer has got competency to maintain the petition under Section 101 of the Act?
2. Whether the respondents are liable to handover possession of the temple alongwith records pertaining to the administration of the petitioner?
Point Nos.1 and 2:
5.Veerappur Arulthiru Kannimar amman Vahayara Temple, Nallampillai Village, Manapparai Taluk, Trichirappalli Distrit is a listed temple which is being administered and maintained by a scheme framed in O.S.No.125 of 1945 on the file of the Sub-Court, Trichy dated 27.11.1946. The then Commissioner HR & CE (Administration), Madras, passed a proceedings in R.Dis.16371/70 dated 21.12.1974 enlisting various irregularities found on the part of the hereditary trustees and appointed the then Executive Officer of Arulmighu Rathinagiriswarar temple, Kulithalai as Executive Officer of the temple. The said proceedings was challenged by the then hereditary trustees by name R. Ramachandran and R.Ponnalagesan in W.P.No.1352 of 1975 on the file of this Court and this Court dismissed the writ petition as abated on 5.7.1977 observing that against the order challenged, there is a right of revision to the State Government under Section 114 of the Act and in view of the existence of alternative remedy , the writ petitioner has to be dismissed as having abated and also under Section 58(2) of the 42nd Amendment to the Constitution. There was no appeal. The above order shows that the matter was not disposed of on merits.
6.Thereafter, the Deputy Commissioner HR & CE (Administration) Trichirappalli, passed a proceedings on 29.5.1989 in Na.Ka.11051/88/A1 directing operation of second bank account in the name of the Executive Officer. The above said hereditary trustees challenged the said proceedings in W.P.No.12936 of 1989 and this Court granted an interim stay. The department filed an application to vacate the stay and the stay was vacated on 3.12.1992. The trustees preferred writ appeal in W.A.No.111/1993 and the appeal was dismissed on 3.2.1993. W.P.No.9023 of 1989 was also dismissed by this Court on 13.07.1998 observing that nothing survives in the writ petition, since the relief sought for in the writ petition was no longer in existence.
7.On 11.2.1993, the then Executive Officer required the hereditary trustee R.Ponnalagesan by his letter, to hand over all the records pertaining to the accounts of the temple on 12.2.1993. Further on 29.1.93 a similar letter was issued to the above said R.Ponnalagesan requiring him to entrust the incharge on any date between 15.2.1993 and 17.2.1993. Thereupon the hereditary trustees of the temple R.Ponnalagesan and Soundarapandian filed a suit in O.S.No.51 of 1993 on the file of the District Munsif Court, Manapparai for a permanent injunction restraining the Executive Officer from interfering with their peaceful management and administrating of the temple involving celebration of annual festival and collection of all benefits incidental to conduct of festival under the pretext of taking over possession of suit temple without recourse to section 101 of the Act and in circumvention of principles of governing equity and natural justice. The suit was decreed in ex-parte as prayed by the petitioner in the petition.
8.The present petition is challenged by the respondents/hereditary trustees on the ground that the requirement in the proceedings dated 21.12.1974 is not infirmity with the ingredients contained in Section 101 of the Act, that no circumstance has contemplated that irregularities are existing in the affairs of the temple, that before passing the order, the hereditary trustees were not heard and hence the order is vitiated by the violation of principles of natural justice and that in view of the finality of the issue by passing of the Civil Court decree in O.S.No.51 of 1993, no further proceedings is permissible.
9.The learned counsel Mr.K.Sankar Murali appearing for the revision petitioner would contend that inasmuch as the proceedings dated 21.12.1974 contains various irregularities found in the administration of the temple by the hereditary trustees and their maladministration has prompted the authorities concerned to direct them to hand over the possession of the temple as well as the records thereto and that the proceedings of the department is legally sustainable.
10.Repelling the contentions, the learned counsel Mr.T. Srinivasa Raghavan and Mr.V.Raghavachari appearing for 1 to 3 respondents would submit that even the circumstances did not warrant passing of the proceedings, that as envisaged in the provision, neither a trustee nor any office holder was dismissed or suspended from his office and there was no material to find that the hereditary trustees were not entitled to the possession, that for want of notice to the then hereditary trustees anterior to passing the impugned order, the order becomes unsustainable, thereto there was no maladministration nor irregularity on the part of the hereditary trustees at any point of time and that they have been regularly submitting accounts which were duly audited and contributions were also made to the department.
11.For better appreciation of the matter in issue the extraction of the provisions under Section 45(1) and Section 101 of Tamil Nadu Hindu Religious and Charitable Endowment Act, 1959 is inevitable, which read as follows:
45. Appointment and duties of Executive Officers:- 1) Notwithstanding anything contained in this Act, the Commissioner may appoint, subject to such conditions as may be prescribed, an executive officer for any religious institution other than a math or a specific endowment attached to a math.
101. Putting Trustee or Executive Officer in possession:- ( 1) Where a person has been appointed-
(a) as trustee or executive officer of a religious institution; or
(b) to discharge the functions of a trustee of a religious institution in accordance with the provisions of this Act in any scheme framed by the Board before the 30th September 1951, and such persons is resisted in, or prevented from, obtaining possession of the religious institution or of the records, accounts and properties threof, by a trustee, office-holder or servant of the religious institution who has been dismissed or suspended from his office or is otherwise not entitled to be in possession or by any persons claiming or deriving title from such trustee, office-holder or servant, not being a person claiming in goodfaith to be in possession on his own account or on account of some person not being such trustee, officer-holder or servant, any Presidency Magistrate or any Magistrate of the first class in whose jurisdiction such institution or property is situated shall, on application by the person so appointed, and on the production of the order of appointment, and where the application is for possession of property, of a certificate by the Commissioner in the prescribed form setting forth that the property in question belongs to the religious institution, direct delivery to the person appointed as aforesaid of the possession of such religious institution, or the records, accounts and properties thereof, as the case may be:
Provided however that, before issuing any such certificate in respect of any property, the Commissioner shall give notice to the trustee, office-holder or servant of the religious institution, as the case may be, of his intention to issue the certificate and consider the objections, if any, of such trustee, officer-holder or servant;
Provided further that for the purpose of proceedings under this sub-section, the certificate aforesaid shall be conclusive evidence that the properties to which it relates belong to the religious institution:
Provided also that nothing contained in this sub-section shall bar the institution of a suit by any person aggrieved by an order under this sub-section for establishing his title to the said property.
Explanation:- A person claiming under an alienation contrary to the provisions of Section 34 or 41 shall not be regarded as a person claiming in good faith within the meaning of this sub-section.
(2) The Presidency Magistrate or the Magistrate of the first class referred to in sub-section(1) may, pending disposal of an application for directing delivery to the person appointed of the possession of the properties mentioned in the certificate by the Commissioner, appoint a Receiver to take possession of such properties or such portion thereof as may be necessary. The remuneration, if any, paid to the Receiver and other expenses incurred by him shall be paid out of the income of the religious institution concerned.
12.The learned counsel for the respondents Mr.T.Srinivasa Raghavan would place reliance upon a decision of this Court by K.K.Sasidharan.J., reported in 2008 TLNJ 175 (civil) [G.Venkatesan v. The Commissioner, Hindu Religious and Charitable Endowments, Chennai] wherein the learned Judge has referred and followed the earlier decision of the Division Bench of this Court and held that the issue of notice to the hereditary trustees by the authority before appointing an Executive Officer for the temple is essential.
13. A Division Bench of this Court in Nagarajan v. Commissioner H.R. & C.E. (1983 L.W. 753) wherein the learned Judges while discussing about the import of section 45(1) of the Act, has observed thus:-
"In our opinion, such a power, drastic as it is, has to be exercised carefully any only where proper reasons existed showing that the temple or the math concerned has not been properly managed by the hereditary trustee. The power under Section 45(1) does not mean that the Commissioner, if he so wills, though there is no reason whatever justifying , can exercise the power and appoint an Executive Officer for a religious institution. We consider, therefore, that before making the appointment, he must inform the hereditary trustee of the reasons which, according to him would, justify the appointment of an Executive Officer, ask for his explanation and after considering the same, if he still, thinks that an Executive Officer is necessary, he may properly exercise his power. It is true that Section 45 does not contemplate any notice or enquiry, but that does not mean that by exercising power under Section 45 at will the Commissioner can invade the hereditary trusteeship which is properly as he has done in this case."
14.The above said decision has been referred to its another decision of the Division Bench of this Court in the Commissioner of H.R. & C.E. v. K. Jothiramalingam (199 9 L.W. 601) in which the following are the relevant findings:-
"The power vested in the Commissioner under Section 45(1) of the Act being very drastic one, it has to be exercised catiously, reasonably and fairly as the exercise of such power may even result in the effective elimination of the hereditary trustee from management and administration of the institution. Therefore it is, that natural justice and fair play require that the Commissioner should properly exercise the power under Section 45(1) of the Act, after being satisfied that the institution has not been properly managed and the then administration leaves much to be desired and requires to be toned up or improved and the appointment of an Executive Officer is justified to secure such better administration. This can be done only after communication to the hereditary trustee of the reasons, which according to the Commissioner justified the appointment of an Executive Officer and after calling for an explanation from him with reference to the irregularities and maladministration and after considering the same. If, after adhering to these requirements, the Commissioner still finds that the interests of the institution would be served better only by the appointment of an Executive Officer, he may properly exercise the power under Section 45(1) of the Act. Though Section 45(1) of the Act by its terms does not contemplate any notice or enquiry, it does not mean that the Commissioner, while exercising powers thereunder, can displace a hereditary trustee at his will and pleasure, throwing out even such hereditary trustees, who efficiently manage and administer the institution in their charge."
15.Even though there is no specific mention in Section 45(1) of the Act for issuing any notice or conducting enquiry, since the powers conferred on the Commissioner are drastic, since the hereditary trustees are vested with the powers of hereditary trusteeship, it is justifiable that they have to be heard before appointing the Executive Officer. The law laid down by this Court requires calling for explanation of the hereditary trustees in the matter of appointment of an Executive Officer in view of the dismissal or suspension of any hereditary trustee from his office or as to their disentitlement to hold the possession. In the case on hand, there is nothing on record to show that before passing the order, the Commissioner issued notice to the then hereditary trustees of the temple nor an enquiry was conducted. It is also not the contention of the petitioner that such notice was given to the then hereditary trustees and they were heard. In view of the non-issuance of notice to the then hereditary trustees, the order dated 21.12.1974 appointing Executive Officer for the temple is vitiated and the said order is not sustainable. Further, in view of the submission of the accounts and their due audits by the department, no allegations could be levelled on the then hereditary trustees that they were not entitled to hold the possession. Contributions were also made by the hereditary trustees then and there and there was no objection raised by the authorities at any point of time and there is no record to show the same.
16.The learned counsel for the respondents also garnered support from a decision of this Court in 2004 (4) CTC 368 [M.P.Anandam Pillai (deceased) and another v. The State] in which it is held that the delinquency which was attached to the then hereditary trustee which warranted the appointment of the Executive Officer does not survive anymore and now that the new set of legal heirs of the two branches have come into existence and it is also stated that there are no controversies between themselves regarding their rights, the continued administration by the Executive Officer is not warranted. It is argued that after a long period of 24 years the order dated 21.12.1974 is attempted to be implemented and the same is not lawful as the earlier trustees are no longer in the possession and the new trustees are in their place.
17.The learned counsel for the respondents also cited a decision in AIR 1965 Mad 512 = 1965 Crl.L.J.777 [Sankaranarayana Pillai v. Ramaswami Pillai and Ors.] wherein it is observed that where the Civil Court has granted an order of injunction the criminal court under Section 101 of the Act, cannot go into the validity or otherwise of that order and the proper procedure will be for the duly appointed trustees to approach the civil Court for redress. In the case on hand a decree for permanent injunction against the petitioner was granted by the Civil Court in O.S.No.51 of 1993 and the same has become final. In view of the existence of the Civil Court decree, the implementation of the order dated 21.12.1974 is curtailed.
18.Learned counsel for the respondent also cited a decision of this Court in 2006 (2) CTC 49 [N.Sivasubramanian v. The Government of Tamilnadu Rep by its Secretary HR & CE Department, Chennai-9] in which it is held as follows:-
"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."
19.It is also argued by the learned counsel for the respondents that when the scheme decree is in operation, appointment of an Executive Officer is not valid. The scheme was framed in O.S.No.125 of 1945 on 27.11.1946. Concededly it is in force. Hence, any order of appointment of Executive Officer would tend to vary or modify the terms of the scheme decree which is not permissible in law. In this context, the learned counsel for the respondents would rely upon a Division Bench decision of this Court in W.A.No.1698 of 1999 dated 14.8.2009 [K.Damodaran v. The Commissioner H.R. & C.E., Administration and K. Kothandaraman] in which it is held thus:-
"21.Though Clause No.3 of this Scheme seems to have fully reflected the intention of the framers of the Settlement deed dated 19.10.1945, applying the rule of hereditary trusteeship of the temple, clause No.4, appears to run counter to the contents of the Settlement deed dated 19.10.1945 since it says that there shall be an executive officer appointed by the Commissioner, to assist in administrating the temple and its properties and the powers and responsibilities as between the hereditary trustees and the executive officer shall be prescribed by the Commissioner. However, since the said Scheme is not under challenge before us, we restrain ourselves from discussing and deciding this aspect. If at all the appellant is aggrieved, he has to initiate necessary proceedings as against the objectionable parts of the Scheme. For all the above discussions, we have no hesitation to hold that the impugned order passed by the Department, appointing an Executive Officer, simply based on the alleged letter addressed by the father of the appellant that too without following the procedure contemplated under the Tamil Nadu Hindu Religious and Charitable Endowments Act 1959 and without any legal sanctity, is bad and non-est in law. Therefore, this writ appeal deserves to be allowed, setting aside the order of the learned single Judge."
20. The impugned order dated 21.12.1974 passed by the Commissioner suffers from the following legal infirmities:-
1.No hereditary trustee was dismissed or suspended.
2.The hereditary trustees were not found disentitled to the possession.
3.Want of notice to the hereditary trustees before appointing Executive Officer
4.Existence of Civil Court decree against the petitioner debarring him from implementing the order impugned.
5.Operation of terms of scheme decree at the time of appointment of Executive Officer.
21. In view of the above said infirmities the order dated 21.12.1974 is not legally sustainable. W.P.No.1352 of 1975 was dismissed on the ground that the hereditary trustees had got right of revision to the State Government under Section 114 of the Act and since an alternative remedy was available, the writ petition was dismissed as not maintainable. There was no discussion on the merits of the matter.
22. A careful study on the factual back ground in the light of the judicial pronouncements which have been adverted to above, I am of the opinion that the Commissioner is not competent to issue the order impugned and upon which the petitioner could not claim records, accounts etc., In such a view of this matter, the order passed by the forum below deserves to be confirmed and it is accordingly confirmed. This revision petition is devoid of merits, which is liable to be dismissed. These points are answered as above.
23. In fine, the Criminal Revision Case is dismissed.
ggs To The Judicial Magistrate, Manaparai.