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Judgment
K. Sampath, J.—The prayer is for certiorari to call for the records of the second respondent herein relating to the communication dated
23.12.92 and quash the same. The allegations in support of the prayer are as under:-- Sri Srinivasaperumal Temple situated in Chinna Chetty
Street, Trichy, is a denominational temple and has been in existence for the sole benefit of Ariya Vysya Telugu Beri Chettiars. The said Bari
Chettiars have formed into one group and are having a Sangam for their social activities and the petitioner is the President of the Sangam and at the
time of filing of the writ petition, the petitioner was in actual management of the day-to-day affair of the temple already referred to.
The petitioner filed O.S. No. 630 of 1992 before Subordinate Judge''s Court, Trichy for framing a scheme for the temple for its proper
management. The suit was decreed on 16.10.1974 and a scheme came to be framed incorporating the necessary provisions for the management of
the temple from and amongst the members of the Ariya Vysya Telugu Beri Chettiars. The temple had not been brought under the control and the
provisions of the Hindu Religious and Charitable Endowments Act 22 of 1959 (hereinafter referred to as ''the act'' ). It would appear that the first
respondent had appointed an Executive Officer for the temple in R. Dis. No. 69789/72-P3 dated 29.12.1972 but the copy of the said order had
not been served on any of the community members. In any event, the said appointment had not been given effect to and the appointed Executive
Officer did not take charge of the day-to-day affairs of the temple till the filing of the writ petition from 1972. The petitioner came to know of the
appointment of an Executive Officer for the temple when the second respondent sent a communication on 23.12.1992 requesting the petitioner to
hand-over possession of the temple and its properties. Only through this communication, the petitioner came to know about the appointment of an
Executive Officer for the temple as early as 29.12.1972. Apparently, the respondents were not aware of the suit filed by the persons belonging to
the community in O.S. No. 630 of 1972 and the scheme decree passed in the said suit. In any event, the communication dated 23.12.1972 (sic) is
ex-facie illegal without jurisdiction and is liable to be set aside.
Though there are several grounds raised in the affidavit in support of the prayer, Mr. W.C. Thiruvangadam learned counsel for the petitioner
confined his argument challenging the order date.d23.12.1992 only on the ground of want of notice and enquiry. It is, therefore, not necessary to
refer to the various grounds set out in the affidavit,
The first respondent has filed a counter-affidavit in the vacate stay petition and the contentions raised in the said counter -affidavit are as under:-
The petitioner has got effective alternative remedies under the Act and without invoking the said remedies, the present writ petition cannot be
maintained. The temple in question was originally brought under the purview of the Act as early as 1972. Thereafter, the Executive Officer of
Arulmigu Naganathaswami Temple, Trichy Town was appointed as trustee of the said temple during 1972 and he took charge of the temple as de
facto trustee vis., N. Duraiswami Chettiar on 7.12.1992. in the meantime, the Assistant Commissioner Hindu Religious and Charitable Endowment
Administration Department, Trichy had submitted a proposal for the appointment of Executive Officer to the temple u/s 45 (i) of the Act in his
reference in Re. No. 20756/72- A5 dated 23.12.1992. On the basis of the recommendations received from the Assistant Commissioner, the first
respondent issued orders duly appointing the Executive Officer of Arulmigu Thayumanaswami Temple Rock Fort, Trichy as the Executive Officer,
of the temple in question in his proceedings Re. No. 69789/72-83 dated 20.12.1972. It is not correct to say that the petitioner and his community
people were not aware of the appointment of the second respondent as Executive Officer of the temple in question. In O.S. No. 630 of 1972, it
has been specifically mentioned that the trustee appointed by the Hindu Religious and Charitable Endowment Department had already taken over
charge of the temple in question and, therefore, he should have been impleaded as necessary party to the suit. This is set out in paragraph 14 of the
written statement. Moreover the fourth defendant in the said suit had handed over charge to the trustee appointed initially by the department. The
father of the writ petitioner one R.V. Kuppuswamy Chettiar was the second plaintiff in the said suit. This respondent had issued notice to the writ
petitioner to hand over charge of the suit temple only as per the report submitted by the Assistant Commissioner. The second respondent took
charge of the group temples viz. Arulmigu Angalamman Temple Chempattu, Arulmigu Anjaneyaswamy Temple Kallukuzhi on 13.11.1991. Except
the temple in question, the first respondent has got every right to appoint an Executive Officer to any temple in the best interest of the institution and
the petitioner has no locus standi to question the same. Secondly at the time of appointment of Executive Officer which was made in 1972 there
was no scheme decree as it was only during 1974 the scheme was framed. The department was also not aware of the proceedings taken by the
community people as neither the first respondent nor the second respondent was impleaded as a party in the suit. Against any order issued by the
Assistant Commissioner or Deputy Commissioner of the Department revision is provided u/s 21 of the Act and without exhausting the same, the
writ petitioner has filed the writ petition. In 1972 when the notice was issued, the said temple had not been declared as denominational one nor
was it managed by the hereditary trustee and therefore there was no question of issuing notice to the de facto trustees. The temple in question is a
public temple and it is very much under the control of the department. It is also not admitted that the writ petitioner is the President of the Sangam.
The decision in the suit is not binding on the department as the department was not a party therein. The department has every power to appoint an
Executive Officer for denominational temple also. The charge was taken by the Executive Officer in 7.12.1972 and this has been suppressed by
the petitioner.
It is seen from the records produced by the parties that the Assistant Commissioner, Hindu Religious and Charitable Endowments Trichy took
possession of the temples and its properties from defendants 1 to 5 in O.S. No. 630 of 1972 in November 1972. However subsequently the
Executive Officer handed back possession to four persons namely, N. Balasubramanian, K. Mohan K. Srinivasan and P.K.S. Dhandapani. In a
communication addressed to the Assistant Commissioner Hindu Religious and Charitable Endowment, Trichy-2 by S. Kunchithapadham,
Executive Officer, it is stated that pursuant to the order of the Commissioner Hindu Religious and Charitable Endowment Department in Na. Ka.
No. 15663/73 dated 30.3.1973 he is handing over the charge of the said temple to the said persons. After this communication, the scheme decree
came to be passed on 16.10.1974. There is a long gap thereafter and a communication dated 4.4.1986 from one P. Mohandoss, Executive
Officer Arulmigu Angalamman Thirukoil Sempattu addressed to the Assistant Commissioner Hindu Religious and Charitable Endowment Trichy -2
is available in the file. It is stated in the communication that pursuant to proceedings Pro. Na. No. 9434/79 dated 11.3.1980, a Class IV Executive
Officer had been appointed to take charge of the temple in question. But till that date temple had not come under the control of the department and
that there was also nothing in the file regarding any case pending between the Department and the temple nor was there any order of stay or
injunction and that in these circumstances directions might be issued for bringing the temple under the control of the department. On 6.4.1983, one
K. Natarajan Executive Officer Arulmigu Anjaneyaluswami Thirukoil, Kallakuzhi Junction, Trichy addresses a letter to the trustees of the temple in
question stating that he had been appointed as Executive Officer for the temple by order dated 11.3.1980 and that the trustees might inform him if
there was any court order restraining the Department from taking over the temple and on their failure to do so, he would take necessary step to
take over the management of the temple in question. In this communication, the writ petitioner is shown as the managing trustee. On 10.6.1989, the
Assistant Commissioner Hindu Religious and Charitable Endowment Trichy - 2 addressed a letter to the Executive Officer, Arulmigu Angalammal
Thirukoil Sempattu mentioning about among other things that if management of the Arulmigu Srinivasaperumal Temple had not been taken over as
yet then, the Executive Officer had to take steps to take over management and report to the Assistant Commissioner, Hindu Religious and
Charitable Endowment, Trichy-2. There is a communication dated 9.1.1990 in which there is a reference to the decree in O.S, No. 630 of 1972
and it is stated that after getting a copy of the decree, further steps would be taken for taking over the management of the temple in question. After
this impugned communication came to be issued.
Mr. W.C. Thiruvangadam learned counsel for the petitioner submitted that unless and until the petitioner had control and management of the
temple in question, the Executive Officer had no jurisdiction to call upon the petitioner to surrender the control of the temple to him. In any event,
learned counsel for the petitioner submitted that before calling upon him to hand over charge, there should have been an enquiry in which he should
have been afforded an opportunity to put forth his objections and only thereafter, there could have been an order directing the petitioner and the
other trustees to hand over possession, if at all.
Per contra, Mr. Balasubramanian learned Special Government Pleader for Hindu Religious and Charitable Endowment Board submitted that
against the order of the Assistant Commissioner, Hindu Religious and Charitable Endowment, Trichy-2, there are provisions under the Act for
challenging the same before the higher authority that when there is an alternative remedy, the discretionary jurisdiction under Article 226 should not
be invoked. Learned Special Government Pleader further submitted that the petitioner has suppressed the material particulars about the possession
and management of the temple having been handed over even in the year 1973 and in view of the suppression of material particulars, the petitioner
is not entitled to any relief in writ petition. It was also submitted that the department had ample jurisdiction to appoint Executive Officers even to
denominational temples and the same cannot be questioned.
As regards the remedy by way of revision or appeal under which the provisions of the Act, it is too late to ask the writ petitioner to approach
the authorities under the Act. The writ petition has been pending for nearly seven years and the objection relating to availability of alternative
remedy cannot be allowed to be raised at this stage of the writ petition. May be that could be agitated at the time of admission or immediately
thereafter on the service of notices, but not at the stage of final hearing. The objection by the learned Special Government Pleader as regards the
availability of alternative remedy is, therefore, rejected.
As regards the submission by learned Special Government Pleader that the petitioner is guilty of suppression of materials, it is necessary to have
a look at some of the leading authorities on this point. First of the authorities is reported in The King v The General Commissioners for the Purpose
of the Income Tax Acts for the district of Kensington (1917) King''s Bench Division 486. Indeed in that case, it was held that
Rule of the court requiring uberrima fides on the part of an applicant for an ex parte injunction applied equally to the case of an application for a
rule nisi for a writ of prohibition"".
The Divisional Court in that case found that there had been suppression of material facts by the applicant in her affidavit and, therefore, refused
a writ of prohibition without going into the merits of the case. This was affirmed by the King''s Bench Division. The King''s Bench Division
observed as follows :-
If on argument showing cause against a rule nisi, the court comes to the conclusion that the rule was granted upon an affidavit which was not
candid and did not fairly state the facts, but stated them in such a way as to mislead and deceive the court, there is power inherent in the court, in
order to protect itself and prevent an abuse of its process, to discharge the rule nisi and refuse to proceed further with the examination of the
merits.
In Manibal Hathibhai Patel and others v C.W.S. Arbuthnot (AIR (34) 1947 Bombay 413, a learned single Judge of the Bombay High Court
after referring to the King''s Bench Division case has observed as follows:-
In an application for the issue of a writ of certiorari or prohibition which are high prerogative writs, it is incumbent on the petitioners to state all
material facts, and if the petitioners are guilty of suppression or non-statement of material facts, the petition cannot be maintained. Where, however.
the suppression on the non-statement of material facts in the petition was due to no intention on the part of the petitioners to mislead or deceive the
court, but it was a result of inadvertence or want of appreciation of the true legal position on the part of their legal advisers, the court would not be
inclined to inflict on the petitioners the dire consequences which are laid down in the judgment of the Appeal Court in (1917) I K.B. 486. but
would allow the petition to be amended.
(emphasis supplied)
In Asiatic Engineering Co. v. Achu Ram and others AIR Allahabad, 746. (sic) a Full Bench of Allahabad High Court had this to say on the
question of suppression.
A person obtaining an ex parte order of a rule nisi by means of petition for exercise of the extraordinary powers under Art. 226 of the
Constitution must come with clean hands, must not suppress any relevant facts from the court, must refrain from making misleading statements and
from giving incorrect information to the court. Courts, for their own production, should insists that persons invoking these extraordinary powers
should not attempt, in any manner, to misuse this valuable right by obtaining ex parte orders by suppression, misrepresentation or mis-statement of
facts. If the facts are stated in such a way as to mislead and deceive the court, there is a power inherent in the court in order to protect itself and to
prevent an abuse of its process to discharge the interim order and to refuse to proceed further with the examination of the merits of the
application.
In that case before the Full Bench it was held that
the petitioner disentitled itself to ask for a writ of prohibition by material suppressions misrepresentation and misleading statements.
In Maganlal Chaganlal (P) Ltd. Vs. Municipal Corporation of Greater Bombay and Others, , the remark by the High Court that the petitioner
was guilty of suppression of material fact was found by the Supreme Court to be not justified. According to the Supreme Court, the petitioner in
that case did not suppress deliberately any material fact.
In Dr. Vijay Kumar Kathuria Vs. State of Haryana and Others, . it was found that the petitioners had made a false representation that the
provisional admissions granted to them were not cancelled and that they were continuing their studies as post-graduate students of Medical College
on the relevant date obtained an order of status quo as of that date to be maintained from the Supreme Court. The Supreme Court held that by
reason of such conduct, the petitioners disentitled themselves from getting any relief or assistance from the Supreme Court.
In U.P. State Sugar Corpn. Ltd. Vs. U.P. State Sugar Corpn. Karamchari Assn. and Others, it has been held by the Supreme Court that the
slight error in the case put forward cannot by itself lead to an inference that a false plea was manufactured by the party to justify action against the
same. All these decisions have been referred to by a Bench of this court in N.P. Peacock v. State of Tamil Nadu and others ( 1995 SLR 706), the
Bench held that discretion under Article 226 cannot be exercised in favour of the petitioner who has suppressed material facts and has not come to
court with clean hands. It was found by the Bench that the applicant in that case had suppressed very vital fact and thereby made false suggestions.
In G.P. Chengalvaraya Naidu (dead) by Irs. v. Jagannath (1991 SCC Page 1 etc.= 1994-I-L.W. The Supreme Court has held that a person
whose case is based on falsehood has no right to approach the court and that he can be summarily thrown out at any stage of litigation.
In J. Sivasubramanian and another Vs. N. Govindarajan and another, ). it was found that the relief had been obtained by suppressing the
material facts and by not impleading necessary party and unfair advantage was gained over rights of party not impleaded. This court interfered
under Article 227 of the Constitution and remedied the situation.
In P. Chenchu Ramiah v A.M. Noohu Nachia and others (1999 I L.W. 37) it was found that material facts had been suppressed, interim
orders obtained and communication was delayed as to prevent the affected party from taking timely action. It was a perpetuated fraud.
Bearing the above principles in mind if we approach a case on hand, the case against the writ petitioner is that he had suppressed the factum of
the department having taken over the management of the temple even in the year 1972 and according to learned Special Government Pleader
(H.R. & C.E.), this would amount to suppression of facts and the petitioner should be refused relief. The dates and events have already been set
out. It has already been noticed that in 1973 the Executive Officer appointed, handed back possession to the trustees of the temple pursuant to
certain proceedings by the Assistant Commissioner, Hindu Religious and Charitable Endowment, Trichy-2. It was only pursuant to certain steps
taken by the department that possession was handed back to the trustees. It is not as if this fact was not known to the department. They cannot
put the blame on the petitioner as could seen from the chronology of the events. Till about 1989-90, the management had continued with the
trustees, the Executive Officer had been crying hoarse, there was no order of stay of any proceedings pending in any Civil Court preventing the
department from taking over the temple. Under the circumstances the suppression attributed to the writ petitioner is not real suppression and it is
not material. It has also been noticed that 1973, the Executive Officer appointed, did not take possession from the present writ petitioner possibly
his father was one of the trustees. May be, the petitioner did not know about the changing of hands in 1973; something that happened 20 years
prior to his coming to court, knowledge cannot be attributed to him. In any event, it cannot be put against him. In my view, the omission to set out
the fact of the then trustees having parted with the management of the temple to the department is not deliberate. If at all, only slight error, as it was
held by the Supreme Court in U.P. State Sugar Corporation Limited case (AIR 1995 SC, 1494) already referred to. This alleged omission cannot
at all be put against the writ petitioner if it comes to exercising of jurisdiction under Article 226. He has not played any fraud on this court or
abused its process.
The next question is as to what relief the petitioner would be entitled to in this writ petition. What all Mr. W.C. Thiruvangadam learned counsel
for the petitioner wants is a hearing. Admittedly, the management had been changing hands since 1973 to the trustees from the department. The
matter had been hanging fire only in the department for well nigh 29 years. The person affected is entitled to be heard and the principles of audi
alteram partem will squarely apply to the facts of the present case as has been held in Surinder Singh Kanda v. Government of Federation of
Malaya (1962 A.C. 322 ) by Lord Denning that the rule against bias is one thing; the right to be heard is another, they are the twin pillars
supporting it. Having regard to what is stated above, the petitioner is entitled to succeed and the impugned letter /communication is quashed. It is
open to the authorities to issue fresh notice to the petitioner giving him an opportunity to raise his objections and then decide the question.
The writ petition is allowed. No order as to costs.