Madras High Court
) N.C.Sridhar vs The Commissioner on 8 June, 2012
Author: Vinod K.Sharma
Bench: Vinod K.Sharma
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08.06.2012 CORAM: THE HONOURABLE MR.JUSTICE VINOD K.SHARMA W.P.No.24113 of 2011 and M.P.No.1 of 2011 Sri Audikesava Perumal Peyalwar Devasthanam Mylapore, Chennai-4, Rep. By its Board of Trustees, 1) N.C.Sridhar, Chairman 2) C.Rangachari 3) I.V.Ananthakumari 4) Ummidi Sudhakar 5) Nathella Narayana Gupta ... PETITIONER -vs- 1. The Commissioner, Hindu Religious & Charitable Endowments Department, Nungambakkam High Road, Chennai-34 2. The Joint Commissioner, Hindu Religious & Charitable Endowments Department, Nungambakkam High Road, Chennai-34 3. M.N.Parthasarathy Battachariar 4. S.Kesavan Battachariar 5. S.Kesavan @ Ravi Battachariar 6. S.Srithar Battachariar 7. S.Venkatakrishnan Battachariar 8. V.Guruvayurappan Battachariar ... RESPONDENTS (R3 to R8 impleaded as per order of this Court dated 07.06.2012) Prayer: Writ petition is filed under Article 226 of Constitution of India for issuance of a writ in the nature of Certiorari, calling for the records pertaining to the impugned show cause notice made in Na.Ka.No.8946/2011/BC dated 26.09.2011 on the file of the second respondent and quash the same as illegal, void, without jurisdiction and ultravires. For Petitioner : Mr.D.Rajagopal For R1 & R2 : Mr.S.Kandaswamy Special Govt. Pleader For R2 to R8 : Mr.M.Sundar ***** O R D E R
Sri Audikesava Perumal Peyalwar Devasthanam, Mylapore, Chennai, has invoked the writ jurisdiction of this Court with a prayer for issuance of a writ in the nature of Certiorari, to quash the impugned show cause notice, issued vide Na.Ka.No.8946/2011/BC dated 26.09.2011, being illegal, void and without jurisdiction.
2. The petitioner Temple is a Temple of Thengalai Persuation and comparatively an old Temple. The Temple is governed as per the scheme framed by this Court in C.S.No.593 of 1922 dated 20.11.1925, which was modified by the Hon'ble Division Bench of this Court in O.S.A.No.189 of 1926, which was again modified in O.P.No.197 of 1950 dated 19.01.1951 and confirmed in O.S.A.No.43 of 1952 dated 26.08.1954.
3. The writ petition has been filed by the present Trustees of the Temple. Thiru N.C.Sridhar is the Chairman of the Trust Board.
4. It is pleaded case of petitioner, that Officials of Hindu Religious & Charitable Endowments Department tried to exercise their powers to fill up vacancies of the Board of Trustees. The action of H.R.&C.E. department was set aside by the Court, on the ground that it was not in the interest of the Temple. The decision passed by Civil Court has attained finality in O.S.A.No.43 of 1952 dated 26.08.1954.
5. The department of H.R.&C.E. again issue a notice on 29.01.1969 for inviting application for appointment of Trustees to the Temple. The said notice was quashed by this Court in W.P.No.706 of 1969 dated 16.04.1970. W.A.No.356 of 1971 filed by H.R.&C.E. against decision of the Hon'ble Single Judge, was also dismissed.
6. The Joint Commissioner, after inspecting the Temple, issued the impugned show cause notice, which is challenged on the following grounds:
a) For instituting disciplinary proceedings under Section 53(1) of the Tamil Nadu Religioius and Charitable Endowment Act, 1959 and
b) For the purpose of appointment of Executive Officer to the Temple.
6.I submit that for proper appreciation of the case, I pray that this Honourable Court to consider Section 53 of the Act XXII of 1959
7.I submit that the impugned show cause notice is challenged for the following amongst other grounds:
a) The second respondent has no jurisdiction, whatsoever to issue the impugned notice
b) The impugned notice was issued with malafide intention and motivated, which is void, ultra vires, bad in law and without jurisdiction.
c) As per the impugned notice income of the temple for Fasli 1417 is mentioned as Rs.40,81,151/- thus as per the provisions of the section 46 and 47 of the Act, it is only the Government possesses the power to deal with the affairs. But however since this institution is governed by a scheme framed by the High Court, and such provision incorporated to scheme having not been amended or modified, the authorities in the Act have no power or jurisdiction as legally pointed out the judgment cited in this case.
d) Section 45(1) of the Act confers a Plenary power to the commissioner HR&CE to appoint EO and such power having not been delegated to any authority, the Joint Commissioner cannot issue a show cause notice under Section 45 of the Act to the trust Board, wherein the powers are confined by the provisions of the scheme. In this case, Trust Board is being constituted as per the provisions of the scheme and without modifying the provisions, the department cannot exercise that power automatically.
e) Section 26(1) of the Act contemplates the disqualification of Trustees. In the instant case the Show cause notice, certain irregularities against the Trust Board are pointed out by the second respondent who is not the competent authority to issue the show cause notice against the petitioners as they are not appointed under Section 47 of the Act XXII of 1959.
f) Only option available to the Department is to get the scheme modified or amended under Section 64(5) of the Act and not by issuing a show cause notice as has been done by the second respondent which is nothing but malafied and motivated one and the same is liable to be quashed."
7. It is the submission of petitioner, that the show cause notice has been issued at the instance of Archakas of the Temple, being enemical to the petitioner, as a criminal case is pending against him.
8. The impugned show cause notice is also challenged being without jurisdiction, on the ground that in the show cause notice, the income of the Temple is shown as Rs.40,81,151/- (Rupees Forty Lakhs Eighty One Thousand One Hundred and Fifty One only), therefore, action under Section 53 of the Act can only be taken by the State Government, and the Joint Commissioner has no jurisdiction to issue show cause notice.
9. Section 53 of the Act reads as under:
"53. Power to suspend, remove or dismiss trustees:- (1) In this section, the expression, "appropriate authority" shall, unless the context otherwise requires, mean,-
(a) in respect of any trustees of any religious institution included in the list published under Clause (iii) of Section 46,the Government;
(b) in respect of any trustee of any religious institution included in the list published under clause (ii) of Section 46, the Commissioner;
(c) in respect of any trustee of any religious institution included in the list published under clause (i) of Section 46 and in respect of any hereditary trustee of any religious institution not included in the list published under the said Section 46, (the Joint/ Deputy Commissioner) and
(d) in respect of any non hereditary trustee of any religious institution not included in the list published under Section 46, the Assistant Commissioner] [1-A) Notwithstanding anything contained in Sub Section (1) for the purpose of this Section, the Government shall also be the appropriate authority in respect of any trustee of any religious institution.) (2) The appropriate authority may suspend, remove, or dismiss any trustee of a religious institution, if he-
(a) ceases to profess the Hindu religion; or
(b) fails to discharge the duties and perform the functions of a trustee in accordance with the provisions of this Act or the rules made thereunder; or
(c) disobeys the lawful orders issued under the provisions of this Act or the rules made thereunder by the Government, the Commissioner or (the Joint Commissioner or Deputy Commissioner] or the Assistant Commissioner, or
(d) continuously neglects his duty or commits any malfeasance, misfeasance or breach of trust, in respect of the trust; or
(e) misappropriates or deals improperly with the properties of the institution; or
(f) is of unsound mind or is suffering from other mental defect or infirmity which would render him unfit to perform the functions and discharge the duties of a trustee or is suffering from leprosy or other loathsome disease, or
(g) is sentenced by a Criminal Court for an offence involving moral deliquency, such sentence not having been reversed or the offence pardoned; or
(h) is an undischarged insolvent ; or
(i) is interested in a subsisting lease of any property of, or contract made with or any work being done for, the religious institution or is in arrears of any kind due by him to the religious institution or
(j) acts adversely to the interests of the institution; or (jj) wilfully to pay the contribution payable under Section (1) of Section 92 or the further sum payable under Sub Section (2) of Section 92 within the time allowed by or under clause (b) of Sub Section 2 of Section 94 o4
k) absents himself from three consecutive meetings of the trustees Explanation - A meeting adjourned for want of quorum shall be deemed to be a meeting for the purpose of this clause; or
(l) in the case of a Chairman of the Board of Trustees or a Managing or Executive trustee, refused or delays to , or does not, hand over charge to his successor.
(3) When it is proposed to take action under Sub Section (2), the appropriate authority shall frame charges against the trustee concerned and give him an opportunity of meeting such charges, of testing the evidence adduced against him and of adducing evidence in his favour, and the order of suspension, remoal or dismissal shall state the charges framed against the trustee, his explanation and the finding on each charge with the reasons therefor.
(4) pending the disposal of the charges framed against the trustee, the appropriate authority may place the trustee under suspension and appoiont a fit person to discharge the duties and perform the functions of the trustee.
(5) A trustee who is aggrieved by an order passed under Sub section (2) may within one month from the date of the receipt by him of the order of suspension, removal or dismissal, appeal against the order
(i) where the order has been passed by the Commissioner, to the Government'
(ii) where the order has been passed by the (Joint Commissioner or Deputy Commissioner) , to the Commissioner and
(iii) Where the order has been passed by the Assistant Commissioner, to this (Joint/ Deputy Commissioner) [5-A) A trustee who is aggrieved by an order passed by the Government under Sub Section (2) may, within ninety days from the date of the receipt of such order by him, appeal against such order to the High Court)
6. A hereditary trustee aggrieved by an order passed by the Commissioner or the Government under sub - section (5) may, within ninety days from the date of receipt of such order by him, institute a suit in the Court against such order."
10. The contention of the learned counsel for the petitioner, by referring to Section 53 of the Act, is that the Temple, though notified under Section 46(2), but on account of enhanced income, it will fall under Section 46(3), and under Section 53(1) of the Act, the jurisdiction to take action against the Trustees can be by the State Government, and Joint Commissioner / Commissioner has no jurisdiction.
11. The writ petition is opposed by the learned counsel appearing on behalf of the respondents, by contending that the writ petition, as framed, is misconceived and is outcome of misreading of the notice. It is contended, that the purpose of show cause notice is to give opportunity to the petitioner to show cause before the recommendations are made to the Joint Commissioner to take appropriate action in accordance with law, in case the allegations are found to be true.
12. In order to support the contention, that the Joint Commissioner has jurisdiction to issue impugned show cause notice, learned counsel for the respondents placed reliance on Section 33 of the Act, which reads as under:
"Inspection of property and documents.- (1) The Commissioner or any officer or other person deputed by the Commissioner in this behalf, may, with due regard to the religious practice or usage of the institution, inspect all movable and immovable p roperty belonging to, and all records, correspondence, plans, accounts and other documents relating to, any religious institution.
(2) It shall be the duty of the trustee of the institution concerned and all officers and servants working under him, his agent and any person having concern in the administration of the institution, to afford all such assistance and faclilities as may be necessary or reasnabley requred in regar to any inspection made in pursuance of sub section (1) and also to produce for inspecton and movable property or document referred to in sub section (1) and to furnish such information as m ay be necessary in connection with such inspection, if so required.
(3) Where in the course of such inspection, it appears that the trustee of the institution concerned, or any of the officers or servants working under him, his agent or any other person having concern in the administration of the institution, pass or present , has misappropriated or fraudently ratained any money or other property or incurred irregular, illegal or improper expenditure the Commissioner, may , after giving notice to the trustee or person concerned to show cause why an order of surcharge should not be passed against him and after considering his explanation, if any, by order, certify the amount so lost and direct the trustee or such person to pay within a specified time such amount personally and not from the funds of the institution.
The procedure laid down in sub sections (3) to (7) of Section 90 shall apply to the recovery of the amount of surcharge."
13. Learned counsel for the respondents contends, that in exercise of powers under Section 13-A, powers of the Commissioner has been delegated to the Joint Commissioner and the Deputy Commissioner
14. Section 13-A reads as under:
"13-A. Powers and duties of [Additional Commissioner and Joint Commissioner].
Subject to the administrative control of the Commissioner, [the Additional Commissioner, or the Joint Commissioner, as the case may be,] shall exercise such powers and discharge such duties of the Commissioner as may, from time-to-time, be determined by the Government, and any order passed or proceeding taken by the [Additional Commissioner or the Joint Commissioner, as the case may be,] in exercise of powers and discharge of such duties shall be deemed to be an order of the Commissioner for the purposes of this Act.]"
It is contended, that as the Temple, is notified under Section 46(2), it is the Joint Commissioner, who has jurisdiction to issue impugned show cause notice. Reference is also made to the notification issued in delegating powers of the Commissioner, which reads as under:
"Commissioner's R C.No.3556/59-A2 dated 03.2.60 Delegation of powers by the Commissioner to the Deputy Commissioners and Assistant Commissioners.
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In exercise of the powers conferred on him by Section 13(2) of the Madras Hindu Religious and Charitable Endowments Act, 1959 the Commissioner hereby delegates to the Deputy Commissioners the powers conferred and the duties imposed on him under the said Act as specified in appendix I to this order subject to the following conditions:-
(a) that it shall be subject to the provisions of the Act and the rules framed under sub section (2) of Section 13; and
(b) that the powers conferred and the duties imposed on the Commissioner by or under sections 35 (2), 58(1), (2) and (3) 86 (1) (a), (30) 87 (3) and 89 (2) may be exercised and performed by the Commissioner also."
15. However, the learned counsel for the respondents at the time of argument fairly conceded that the Joint Commissioner was not the competent authority to initiate action under Section 53 of the Act, and contended, that the show cause notice has been issued under Section 33 of the Act, thus, is within the jurisdiction of the Joint Commissioner in view of the delegation of powers of the Commissioner.
16. This contention of the learned counsel for the respondents deserves to be noticed to be rejected. The reading of Section 33 shows that notice under Section 33 can be issued for surcharge, in case of allegations of misappropriation or fraudulent retention of money or other property or on incurring irregular, illegal or improper expenditure.
17. The reading of the notice does not show any allegation of misappropriation or fraudulent retention of money, nor the show cause notice dealing with the question, covered under Section 33. The show cause notice specifically states to show cause as to why recommendation be not made to the Commissioner, for removal of the Chairman and to appoint a new person in his place.
18. Allegations in the show cause notice are also, that the Chairman is controlling the Temple without associating others, that the Trustees are not looking after the interest of the devotees, that the appearance of the Temple is bad, the advertisement around the Temple not removed, that there is leakage of water from the tap, resulting in foul smell, that the receipts have been stamped for Rs.5/- without authority of the Commissioner, non maintenance of accounts, non construction of wall, the camera having been placed at the wrong place, jewels room having door, which cannot be properly locked etc.
19. The allegations of mismanagement can be the ground for removal of trustees in exercise of powers under Section 53 of the Act. The Section 46(2) deals with categorization of Temple, based on income. The enquiry under Section 33 of the Act, can be conducted with regard to misappropriation and surcharge proceedings, and not for removal of the Trustees.
20. As regards the contention of the respondents, that under Section 53, notice could be issued by the Joint Commissioner, cannot be accepted, as admittedly the income of the Temple brings it within the jurisdiction of the State Government under Section 53(1) and the Joint Commissioner does not have the delegated powers of the State Government either to issue show cause or hold enquiry into the allegations, therefore, the show cause notice is without jurisdiction.
21. Consequently, this writ petition is allowed. The impugned show cause notice is ordered to be quashed.
22. No costs. Connected miscellaneous petition is closed.
23. However, this decision shall not bar the State Government to take action against the Trustees, if so advised, in accordance with law.
08.06.2012 Index: Yes Internet: Yes ar VINOD K.SHARMA,J., ar To
1. The Commissioner, Hindu Religious & Charitable Endowments Department, Nungambakkam High Road, Chennai-34
2. The Joint Commissioner, Hindu Religious & Charitable Endowments Department, Nungambakkam High Road, Chennai-34 W.P.No.24113 of 2011 08.06.2012