BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 07/12/2010 CORAM THE HONOURABLE MR.JUSTICE N.PAUL VASANTHAKUMAR W.P.(MD).No.210 of 2010 & M.P(MD)No.1 of 2010 Kalaperumal ... Petitioner Vs 1.The Joint Commissioner, Hindu Religious and Charitable Endowment Department, Tirunelveli-2, Tirunelveli District. 2.The Government of Tamil Nadu, Rep.by its Secretary, Hindu Religious and Charitable Endowment Department, Chennai. ... Respondents PRAYER Petition filed under Article 226 of the Constitution of India for issuance of a Writ of Certiorarified to call for the records pertaining to the proceedings of the first respondent in Se.Mu.Na.Ka.5769/2009/B1 dated 24.07.2009 and quash the same. !For Petitioner ... Mr.V.Kannan ^For Respondents... Mr.K.M.Vijayakumar, Addl.Govt.Pleader. :ORDER
The prayer in the writ petition is to quash the order dated 24.07.2009
appointing a fit person to Arulmigu Kodimadasamy Temple at Tirunelveli.
2. The said order was passed on the ground that after the demise of the
petitioner’s father, the petitioner functioned only as an administer of the said
Temple and no authority has recognized him as a hereditary trustee due to the
pendency of O.A.No.1 of 2005 filed by one of the sons of the petitioner’s father
through the first wife. On perusal of the impugned order it is evident that it
has been passed not only on the ground of pendency of the application, but also
on the ground of certain allegations that the petitioner while administering the
temple has not conducted “Chithiri Festival” and poojas due to the death of one
of his relative due to which a complaint was given by the public on 13.04.2009.
Thus, it is evident from the said order that based on certain allegations, the
impugned order was passed, removing the petitioner from the administer of the
temple pending O.A.No.1 of 2005 that too without notice and consequently a fit
person has been appointed.
3.It is a well settled principles of law that when an order is passed
against a person based on some allegations, the person should be issued notice
and then only orders can be passed after hearing his objections. The
petitioner’s father died in the year 2003 and until the impugned order was
passed, the petitioner even though was not recognized as a hereditary trustee,
he functioned as an administer of the said temple. Therefore, the order of the
first respondent without issuing notice or an opportunity of hearing, based on
the allegations cannot be sustained as it is violation of Audi alteram partem.
In Uma Nath Pandey v. State of UP reported in AIR 2009 SCC 2375, in paragraph
Nos.15,16 and 19, the Supreme Court held as follows:
15. Concept of natural justice has undergone a great deal of change in
recent years. Rules of natural justice are not rules embodied always expressly
in a statute or in rules framed thereunder. They may be implied from the nature
of the duty to be performed under a statute. What particular rule of natural
justice should be implied and what its context should be in a given case must
depend to a great extent on the fact and circumstances of that case, the frame-
work of the statute under which the enquiry is held. The old distinction between
a judicial act and an administrative act has withered away. Even an
administrative order which involves civil consequences must be consistent with
the rules of natural justice. Expression `civil consequences’ encompasses
infraction of not merely property or personal rights but of civil liberties,
material deprivations, and non-pecuniary damages. In its wide umbrella comes
everything that affects a citizen in his civil life.
“16. Natural justice has been variously defined by different Judges. A few
instances will suffice. In Drew v. Drew and Lebura (1855(2) Macg. 1.8, Lord
Cranworth defined it as `universal justice’. In James Dunber Smith v. Her
Majesty the Queen (1877-78(3) App.Case 614, 623 JC) Sir Robort P. Collier,
speaking for the judicial committee of Privy council, used the 8
phrase `the requirements of substantial justice’, while in Arthur John Specman
v. Plumstead District Board of Works (1884-85(10) App.Case 229, 240), Earl of
Selbourne, S.C. preferred the phrase `the substantial requirement of justice’.
In Vionet v. Barrett (1885(55) LJRD 39, 41), Lord Esher, MR defined natural
justice as `the natural sense of what is right and wrong’. While, however,
deciding Hookings v. Smethwick Local Board of Health (1890(24) QBD 712), Lord
Fasher, M.R. instead of using the definition given earlier by him in Vionet’s
case (supra) chose to define natural justice as `fundamental justice’. In Ridge
v. Baldwin (1963(1) WB 569, 578), Harman LJ, in the Court of Appeal countered
natural justice with `fair-play in action’ a phrase favoured by Bhagawati, J. in
Maneka Gandhi v. Union of India (1978 (2) SCR 621). In re R.N. (An Infant)
(1967(2) B617, 530), Lord Parker, CJ, preferred to describe natural justice as
`a duty to act fairly’. In fairmount Investments Ltd. v. Secretary to State for
Environment (1976 WLR 1255) Lord Russell of Willowan somewhat picturesquely
described natural justice as `a fair crack of the whip’ while Geoffrey Lane, LJ.
In Regina v. Secretary of State for Home Affairs Ex Parte Hosenball (1977 (1)
WLR 766) preferred the homely phrase `common fairness’.
19. Natural justice is the essence of fair adjudication, deeply rooted in
tradition and conscience, to be ranked as fundamental. The purpose of following
the principles of natural justice is the prevention of miscarriage of justice.”
4.Applying the said judgment to the facts of the present case, I am of the
view that the petitioner has made out a case to quash the impugned order. The
learned Counsel for the petitioner submitted that the fit person has not taken
charge and the temple being a family temple he may be permitted to function.
5.In view of the above, the impugned order dated 24.07.2009 passed by the
first respondent is set aside and the matter is remitted back to the first
respondent, who shall issue notice to the petitioner and pass fresh orders after
hearing his objections. Since the impugned order is set aside, status-quo as on
date is ordered to be maintained till fresh orders are passed.
6.The writ petition is allowed in the above terms. No costs. Consequently,
connected Miscellaneous Petition is closed.
gsr
To
1.The Joint Commissioner,
Hindu Religious and
Charitable Endowment Department,
Tirunelveli-2,Tirunelveli District.
2.The Government of Tamil Nadu,
Rep.by its Secretary,
Hindu Religious and
Charitable Endowment Department,
Chennai.