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9. W.P. No. 10332 of 1996 has been filed by the trustees of Arulmigu Kulalar Pillayar temple, Tiruppur Town, for a writ of declaration that the Ordinance, now Act 23 of 1996 in question is illegal, invalid, ultra vires and without jurisdiction. It is stated that the temple in question was established and managed by the Kulalar (Potters) community people of Tiruppur Town, and that in O.A. No. 277 of 1942, the Board of Commissioner, H.R. & C.E. has declared this temple as a denominational temple belonging to the said community, and provided for the appointment of trustees to the temple from and amongst the members of the said community. The community members alone are appointed as trustees for the temple by the appropriate authorities under the provisions of the Act and since the temple being a denominational temple, the petitioners are entitled to the protection of Article 26 of the Constitution and Sections 51 and 107 of the Act. It is stated that the petitioners are appointed for a period of three years from the date of their election and that they are entitled to be in office till 7.5.1997.

27. Counter-affidavit has been filed by the State Government only in two cases stating that the non-hereditary trustees ceases to hold office on the appointed day, that the temple administration is not totally taken away, that the same has been taken over till new trustees are appointed and that under the provisions of the Act, the Temple Administration District Committee and the Temple Administration Board have been empowered to appoint non-hereditary trustees in respect of religious institutions. With respect to the appointment of non-hereditary trustees, discontent has been voiced on a large scale by the general public and therefore, in public interest and for the proper maintenance and administration of the religious institutions, it was considered necessary to remove the non-hereditary trustees so appointed and fill up the vacancies. Accordingly, since the Legislative Assembly of the State was not in session, the Governor of Tamil Nadu in pursuance of the Proviso to Clause I of Article 213 of the Constitution, promulgated the Ordinance 3 of 1996, which was published in the Government Gazette, dated 26.6.1996. Therefore, in all cases proceedings were issued appointing fit persons in the place of the existing non-hereditary trustees. The impugned Ordinance and Act 23 of 1996 are not violative of Article 14 of the Constitution. The claim of the petitioners that the impugned Ordinance and Act 23 of 1996 are not applicable to denominational temples is not correct. The Ordinance and Act 23 of 1996 exempt only hereditary Trustees and do not exempt a temple administered under a scheme.

(Italics supplied) However, in the case on hand there was no such commission appointed and there was no such finding. Merely on some complaints by legislative dictum non-hereditary trustees have been removed. Thus, the legislature has entrenched upon the field reserved for the Judiciary.

40. In the decision reported in K. Ekambaram v. The Commissioner H.R. & C.E. Administration Department (1995) 2 L.W. 213, the order of the 1st respondent appointing the 2nd respondent as Executive Officer for the denominational temple was challenged. The appellants and two others were appointed as trustees of the temple in question for a period of three years in exercise of the power under Section 47 of the Act. After the appointment, the administration of the temple vested in them and they were carrying on the administration of the temple. In the meantime, by the impugned order, the 1st respondent appointed the 2nd respondent as the Executive Officer on the ground that it is necessary for the better management of the temple. The appointment was made under Section 45(1) of the Act. The contention of the petitioners was that as they have been appointed as trustees for a period of three years pursuant to the scheme framed for the temple by the Deputy Commissioner is exercise of his power under Section 64(1) of the Act, they are entitled to function as trustees and the administration of the temple vested in them, and as a result of the appointment of the Executive Officer, all the powers and functions of the trustees were taken away by the Executive Officer and they were left with no power. Thus, they became nominal trustees without any power and functions. They also contended that the appointment of the Executive Officer without notice to them contravened the principle of natural justice. A Division Bench consisting of K.A. Swami, C.J. and T. Somasundaram, J., held in paragraph 4 as follows:

It is not possible to hold that Section 45(1) of the Tamil Nadu H.R. & C.E. Act excludes the application of principle of natural justice when an Executive Officer is to be appointed on the ground of failure of trustees in performing the functions; an action against trustees cannot be taken or they cannot be deprived of their rights without affording an opportunity to explain the allegations made against them, depriving of the right vested in them as trustees. In the instant case it is not disputed that no notice was issued to the trustees and no opportunity was given to them to show cause as to why an Executive Officer should not be appointed because of their failure to safeguard the interests of the temple or because of several acts of misconduct alleged against them, affecting the interests of the temple. One of the objects of the Act is to vest the administration of the temple in the trustees. If the power under Section 45(1) of the Act has to be exercised, keeping in view that object whenever a Commissioner finds it necessary that Executive Officer has to be appointed on the ground that the trustees are not taking due care and caution and have failed to safeguard the interests of the temple, he can do so only on affording an opportunity to the trustees. The ground for appointment is the one which affects the trustees, because, it is alleged against them that they have failed to safeguard the interests of the temple. Section 45(1) of the Act gives vast powers to the Commissioner. It opens with the non-obstante clause. Thus, the provision has the overriding effect on the other provisions contained in the Act and thereby it empowers the Commissioner, notwithstanding any other provisions contained in the Act, to appoint an Executive Officer, subject to such conditions as may be prescribed, for any religious institution other than a math or a specific endowment attached to a math. When such a power is conferred, the scope and ambit of such power shall have to be determined with reference to other provisions contained in the Act and also the object which the Act intends to achieve and serve. It cannot be disputed that the Act is to consolidate the law relating to the administration and governance of Hindu Religious and Charitable Institutions and Endowments in the State of Tamil Nadu. In order to achieve that object, the Act provides for establishment of the Temple Administration Board, Constitution of District Committees, creation of Authorities under the Act, religious institutions and its general provisions and in addition to this, it also deals with the Maths.