IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 28.08.2008 CORAM: THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN W.P.No.18150/2000 1.A.Govindaraju Thenna Thirayar 2.C.Subbiah Thenna Thirayar 3.K.Udayappan Thenna Thirayar 4.K.Selvaraj Kandiyar 5.R.Govindaraju Melavarayar 6.N.Avudayappan Velangkondar : Petitioners Vs. 1.The Commissioner, H.R. & C.E. (Admn.) Department, Chennai-34. 2.The Executive Officer, A/m. Veeramakaliamman Temple, Aranthanki, Pudukottai District. : Respondents Petition filed under Article 226 of the Constitution of India, praying for a Writ of Certiorari to call for the records of the first Respondent in his proceedings R.Dis.No.120/98-2 L1 dated 06.02.1998 appointing the second Respondent as Common Executive Officer for A/m.Karuppiah Swami @ Muthukaruppaiah Swami Temple at Karambakudi Village, Alangudi Taluk, Pudukottai District and quash the same. For Petitioners : Mr.K.Jayaraman For Respondents : Mr.T.Chandrasekaran, Spl.G.P. (H.R. & C.E.), for R-1. No appearance for R-2. O R D E R
This Writ Petition is directed against the order dated 06.02.1998 in proceedings R.Dis.No.120/98-2 L1 on the file of the first Respondent whereby the second Respondent was appointed as Common Executive Officer for the temple by name A/m.Karuppiah Swami @ Muthukaruppaiah Swami Temple at Karambakudi Village, Alangudi Taluk, Pudukottai District.
2.The factual matrix as culled out from the affidavit filed in support of the Writ Petition are as under :-
(a)The public temple A/m.Karuppiah Swami @ Muthukaruppaiah Swami Temple at Karambakudi Village, Alangudi Taluk, Pudukottai District was constructed by the ancestors of the petitioners before several decades and ever since the date of construction of the temple, it was exclusively managed and maintained by the family of the petitioners without any interruption. The petitioners have been in possession and management of the temple for several generations continuously and as such, they have been holding office of hereditary trusteeship in the temple in succession. Subsequently, the petitioners have also filed application in O.A.No.15/2000 under Section 63(B) of the Tamil Nadu Hindu Religious and Charitable Endowment Act for declaration of their hereditary trusteeship.
(b)While the matter stood thus, the second Respondent informed the petitioners as per letter dated 16.08.2000 that he has been appointed as Executive Officer of the said temple as per proceedings of the first respondent dated 06.02.1998 and required them to hand over charge of the temple. Even though the petitioners have apprised the second Respondent about their right to manage the temple, the same was not considered by the second Respondent and as such, the petitioners have come up with the present Writ Petition to quash the appointment of the second Respondent as the Executive Officer of the subject temple.
3.The first Respondent has filed counter affidavit in answer to the contentions raised in the Writ Petition. It was the contention of the first Respondent that originally one Thiru.K.Adaikalam was looking after the management of the temple as non-hereditary Trustee and after coming into force of the HR & CE Act, one Thiru.Mamundi, then Village Munsif of Karambakkudy was appointed as Fit Person under sub section (2) of Sec.11 of the Act. Subsequently, notice calling for applications for appointment of non-hereditary Trustees of the temple was issued by the Assistant Commissioner, Pudukottai as per notification dated 21.04.1978 and Thiru.K.Adaikalam, father of the first petitioner had applied for the same and he was appointed as a single non-hereditary trustee as per proceeding dated 30.01.1982 for a period of three years. Later, the first petitioner and two others as well as the Inspector of HR & CE Department at Pudukottai were appointed as non-hereditary trustees of the temple and the said Trustees have not only failed to manage the institution and its properties but had also failed to produce any of the records for the income and expenditure of the temple. Therefore, it has become necessary in the interest of the temple to appoint an Executive Officer and accordingly, the second Respondent was appointed as Executive Officer of the temple as per proceedings dated 06.02.1998 and he took charge of the office on 28.09.2000.
4.It was further indicated in the counter affidavit that the term of office of the first Petitioner who was appointed as a non-hereditary trustee of the suit temple expired on 18.12.2000. It was also contended that the Executive Officer was appointed only for the better and proper management of the temple, as the petitioners have failed to manage the temple properly, and as such, there was no illegality in the impugned Order calling for interference in the present Writ Petition.
5.The learned Counsel appearing for the petitioner contended that the impugned Order is violative of Principles of Natural Justice inasmuch as no notice has been issued to the petitioners before appointment of the Executive Officer. It was the further contention of the learned Counsel that the petitioners have been in management of the temple as hereditary trustees and as such, the order appointing the second Respondent involves civil consequences insofar as the petitioners are concerned and as they were not taken into confidence before issuing the impugned Order by the first Respondent, the very order is unsustainable in law.
6.The learned Special Government Pleader appearing for the first respondent justified the action of the first Respondent in issuing the impugned Order, as according to him, the petitioners have no right to continue in management of the temple and when the first Respondent was apprised of the position that there was an act of mismanagement on the part of the petitioners, the first Respondent was justified in passing the impugned Order and the said act was only for the interest of temple and as such, no interference is called for in the said order.
7.It is true that the first Respondent is empowered to appoint an Executive Officer to the temple by virtue of the power vested in him under Section 45(1) of the HR & CE Act. However, in the present case, the reason for appointing the second Respondent as Executive Officer is found to be the mismanagement of the petitioners insofar as the affairs of the temple is concerned. From the counter filed by the first Respondent, it is also evident that the term of the first respondent expires only on 18.12.2000. However, the appointment of the second Respondent as Executive Officer was made as per the proceeding dated 06.02.1998. As such, it is crystal clear that it was only during the trusteeship of the first Respondent and others that the impugned Order has been passed and that too on the ground that there was an act of mismanagement on the part of the petitioners. When the reason for taking action for appointment of the Executive Officer is stated to be the mismanagement of the temple and its affairs, the first Respondent should have issued notice to them and only after giving an opportunity to submit their version that the first Respondent should have resorted to the extreme step of appointment of an Executive Officer. Even though in the counter affidavit allegations are made against the petitioners that they were not properly managing the affairs of the temple and they failed to produce the records showing the income and expenditure of the temple, no such reason is found mentioned in the impugned Order. Therefore, I am of the view that the impugned Order is liable to be quashed on the ground of violation of Principles of Natural Justice.
8.Though the Commissioner is empowered to appoint an Executive Officer for any religious institution other than a math or a specific endowment attached to the math when there was a hereditary trustee functioning in respect of the temple, such trustee should be taken into confidence before appointment of the Executive Officer. It is not as if such appointment should be made for a mere asking. It is found from the decided cases with respect to Section 45 of the Act that only in case the Commissioner is satisfied that the administration of the temple has not been conducted in a proper manner and there was misuse of the authority by the hereditary trustee, that such appointment could be made and that too after giving an opportunity of hearing to the hereditary trustee. However in the present case, no such notice has been given to the petitioner before such appointment.
9.In NAGARAJAN v. COMMISSIONER H.R & C.E. (1983 Law Weekly 753), the issue before a Division Bench of this Court was in relation to appointment made by the Commissioner of H.R.& C.E. in respect of a temple without notice to the hereditary trustee and after considering Section 45(1) of the H.R. & C.E. Act, the Division Bench held thus:_
“It may be seen that by appointing an Executive Officer with such powers the hereditary trustee is reduced to a non-entity as it were. The power under Section 45 to appoint an Executive Officer may no doubt be exercised by the Commissioner in proper cases. The discretion vested in him is to be exercised reasonably and fairly, because the power by its very nature is a drastic one, and appointment of an executive officer is more often than not, likely to virtually eliminate a hereditary trustee. It is now well settled that hereditary trusteeship is property and as such it is entitled to protection. It is in view of this that the procedure in Section 47 has been provided that where non-hereditary trustees are to be appointed along with the hereditary trustees, the appointment should be preceded by such enquiry as the Commissioner may deem adequate and he could make the appointment only if he considered there were reasons therefor which should be recorded. The reasons should suggest that the institutions concerned are not likely to be managed properly by the hereditary trustee. The inter position of an executive officer may in some respects be regarded as even more drastic than the appointment of a non-hereditary trustee, more especially as the Executive Officer is vested with sweeping powers such as in the instance case, which deprive the hereditary trusteeship of its subsistence.
In our opinion, such a power, drastic as it is, has to be exercised carefully and 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 property as he has done in this case.”
10.The Judgment of this court in NAGARAJAN v. COMMISSIONER H.R & C.E. (1983 Law Weekly 753) cited supra has been followed in THE COMMISSIONER, HINDU RELIGIOUS AND CHARITABLE ENDOWMENTS v. K.JOTHIRAMALINGAM (1999 LAW WEEKLY 601) and after analysing the provisions of Section 45(1) of the H.R. & C.E. Act, the Division Bench observed thus :
“… Ordinarily, in the case of the hereditary trustee in charge of an institution, he is clothed with plenary powers in the matter of the management as well as the administration of the temple in that he would be entitled to possession of all the properties and movables of the institution, to receive the income in cash and kind and in the shape of offerings, to make disbursements and incur expenditure, to draw up a budget, to exercise control over all office holders and servants and be in charge of the temple and responsible for the maintenance of the records, accounts and registers, to see to the supply provisions and stores and check the same and to see to the performance of the poojas, festivals and other services according to the usage and dhittam, to bring actions on behalf of the institution and represent the institution in actions brought against it and to allot work to the office holders and servants, etc. But the appointment of an Executive Officer under Section 45(1) of the Act coupled with the conferment on him of all or almost all the above powers, would be to relegate the hereditary trustee to the position of a non-entity. We ought not to be understood as saying that the Commissioner cannot exercise his powers under Section 45(1) of the Act, in a case, where the institution is under the administration and management of a hereditary trustee. No doubt, the power under Section 45 of the Act can be and has also to be exercised by the Commissioner appropriately in such case. The power vested in the Commissioner under Section 45 (1) of the Act being a very drastic one, it has to be exercised cautiously, 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.”
11.In view of the reasons aforesaid and the binding judgment of the Division Bench referred to above, I am of the view that the respondent committed serious error in passing the impugned order, appointing Executive Officer for the temple in question without issuing notice to the petitioner. Therefore the impugned order has to be quashed solely on the ground of violation of the principles of natural justice.
12.In a recent Judgment in SAHARA INDIA (FIRM), LUCKNOW v. COMMISSIONER OF INCOME TAX reported in 2008(6) SCALE 733, the Apex Court observed that the phrase “natural justice is not capable of a precise definition and the said principle evolved under the common law is to check arbitrary exercise of power by the State and its functionaries and held thus:-
“11. Rules of “natural justice” are not embodied rules. The phrase “natural justice” is also not capable of a precise definition. The underlying principle of natural justice, evolved under the common law, is to check arbitrary exercise of power by the State or its functionaries. Therefore, the principle implies a duty to act fairly, i.e. fair play in action. As observed by this Court in A.K. Kraipak & Ors. Vs. Union of India & Ors., the aim of rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. They do not supplant the law but supplement it. (Also see: Income Tax Officer & Ors. Vs. M/s Madnani Engineering Works Ltd., Calcutta ).
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17. In Mohinder Singh Gill & Anr. Vs. The Chief Election Commissioner, New Delhi & Ors. , explaining as to what is meant by expression ‘civil consequence’, Krishna Iyer, J., speaking for the majority said:
“‘Civil Consequences’ undoubtedly cover infraction of not merely property or personal rights but of civil liberties, material deprivations and non-pecuniary damages. In its comprehensive connotation, everything that affects a citizen in his civil life inflicts a civil consequence.”
(emphasis supplied)”.
13.It is found from the impugned proceedings as well as from the pleadings that the petitioners were not given opportunity before the appointment of the Executive Officer and in fact, such appointment was made even during the subsistence of the Trusteeship of the first petitioner. In such view of the matter, the impugned order is necessarily to be quashed. Accordingly, the impugned order dated 06.02.1998 is quashed solely on the ground of violation of principles of natural justice. It is open to the respondent to issue fresh notice to the petitioners for the purpose of appointment of Executive Officer to the subject temple and to pass appropriate orders on merits and in accordance with law. The writ petition is allowed subject to the above observation. No costs.
tar
To
1.The Commissioner,
H.R. & C.E. (Admn.) Department,
Chennai-34.
2.The Executive Officer,
A/m. Veeramakaliamman Temple,
Aranthanki,
Pudukottai District