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Judgment
W.A. No. 2351 of 2005 is preferred against the order dismissing the interim direction petition filed by the appellant/petitioner herein seeking
direction to the respondents to handover the charge of Arulmigu Sankaralinga Swamy Temple etc., Devasthanam, North Chokkar Street, Tenkasi
to the appellant/petitioner.
W.A. No. 2352 of 2005 is against the order in W.V.M.P. No. 1553 of 20 05, vacating the interim stay of operation of the order of the
Commissioner, Hindu Religious and Charitable Endowment Department, Chennai, appointing the 5th respondent herein as Executive Officer of
Arulmigu Sankaralinga Swamy Temple etc., Devasthanam, Tenkasi.
As the writ appeals arise from the interim orders passed by the learned single Judge of this Court, this Bench directed to list the writ petitions
also along with the writ appeals for final disposal.
The order in proceedings No. Na.Ka. No. 31654/2002/L5, dated 17.3.20 05 passed by the Commissioner of Hindu Religious and Charitable
Endowment Department, Nungambakkam, Chennai 34, appointing the 5th respondent herein as Executive Officer of Arulmigu Sankaralinga
Swamy Temple etc., Devasthanam, North Chokkar Street, Tenkasi, is under challenge in W.P. No. 14392 of 2005.
In W.P. No. 20575 of 2005 petitioner seeks a direction to the respondents to hand over the charge of Arulmigu Sankaralinga Swamy Temple
etc., Devasthanam, Tenkasi, to the petitioner and rest of the scheme Trustees.
The facts that are necessary for the disposal of the above writ petitions are as follows, (a) The group of temples, namely (1) Arulmigu
Sankaralinga Swamy Temple, North Chokkar Street, Tenkasi; (2) Arulmigu Tripura Sundari Ammal Temple, South Oppanai Street, Tenkasi; and
(3) Arulmigu Vinayagar Temple, South Chokkar Street, Tenkasi, belong to Velakurichi Sengunda Mudaliar Community of Tenkasi Town and the
said temples were established and maintained by the Velakurichi Sengunda Mudaliars themselves. The temples are managed by forming a
Devasthanam in the name and style ''Arulmigu Sankaralinga Swamy Temple, etc., Devasthanam'', which is in administration of the temples as per
the scheme formed in the General Body held on 4.7.1943. For administration of the temple, five trustees, belonging to Velakurichi Senguntha
Mudaliyar Community of Tenkasi Town, were elected. One K. Shanmughasundaram, the 6th respondent herein was appointed as Managing
Trustee as well as President of the Community. Petitioner is also one of the elected trustee.
(b) The case of the petitioner is that the 6th respondent, instead of looking after the welfare of the temples, diverted the temple funds for his private
purposes and appropriate accounts were not placed before the General Body and therefore rest of the trustees addressed a letter to the Managing
Trustee/6th respondent herein, to convene a General Body meeting, but the same was not complied with. It is further alleged that the 6th
respondent was acting detrimental and adverse to the interest of the temples and his activities were also against the interest of the community and
therefore some of the community members filed a suit in O.S. No. 21 of 2001 against all the Trustees on the file of the Sub Court for declaration,
permanent injunction and for rendition of accounts and the said suit was transferred to the District Munsif Court, Tenkasi and renumbered as O.S.
No. 132 of 004 and the matter is still pending. It is further stated that the learned District Munsif in I.A. No. 1775 of 2004 directed the 6th
respondent to furnish the accounts as well as produce certain documents, which are in his custody.
(c) It is the further case of the petitioner that the 5th respondent instead of complying with the above direction and convening general body, had
chosen to submit a representation to the second respondent alleging certain allegations against the trustees. The second respondent without
verifying the correctness or otherwise of the allegations and without issuing any notice to the trustees, passed an order on 17.3.2005 purported to
be u/s 45(1) of the HR&CE Act (Act 22 of 1959) and appointed the 5th respondent as Executive Officer. The said order appointing the 5th
respondent as Executive Officer of the Temple is challenged in the first writ petition.
(d) The main ground of attack in the affidavit is that the temples are community temples and HR&CE department has no jurisdiction over the
temples and the said position is also declared in A.S. No. 73 of 1982 by the competent Civil Court, wherein it is held that the temples are
denominational temples and getting protection under Article 26 of the Constitution of India and before proceeding with the appointment of the
Executive Officer u/s 45(1) of the Act, notice ought to have been given and non-issuance of notice is against the principles of natural justice.
The second respondent has filed a counter affidavit in which it is contended that the temples are already declared as denominational temples by
the appellate Court in A.S. No. 73 of 1982 by judgment dated 8.9.1983 and no doubt the temples belong to the community and trusteeship and
for the purpose of management they vest with the members of the community, but if there is any mismanagement, the second respondent is
empowered to appoint Executive Officer u/s 45(1) of the Act even though they are community and denominational temples. According to the
second respondent there are two groups in the community and the 6th respondent voluntarily come forward to hand over the management of the
temples to the department and therefore in the interest of the temples and public worship, the second respondent appointed 5th respondent as
Executive Officer of the temples.
The learned counsel for the petitioner during his arguments stressed the point that before passing the impugned order appointing 5th respondent
as Executive Officer, the second respondent did not issue any notice to the petitioner or to other Trustees.
Admittedly, the second respondent exercised the power u/s 45(1) of the HR&CE Act. Section 45(1) deals with the power of Commissioner to
appoint Executive Officers subject to such conditions as may be prescribed notwithstanding anything contained in the Act.
In the decision reported in Tamarakulam Vellala Samudhayam, Arya Kulasekhara Nangai Amman Temple Trustee, Subramania Pillai Vs. The
State of Tamil Nadu and Another, in paragraph 15, this Court held that even though the denomination has a right to administer the temples, if there
is any maladministration, the departmental authorities would be in a position to exercise the necessary powers to the extent possible under the
statute.
Section 45 of the Act, even though empowers the second respondent to pass an order appointing Executive Officer, that power has to be
exercised in terms of the policy of the Act. The said power shall be exercised coupled with a duty. Therefore it is the duty of the second
respondent to see as to whether the Executive Officer has to be appointed for better and proper administration of the group of temples.
As pointed out above, no doubt the second respondent is empowered to appoint Executive Officer u/s 45(1) of the Act. But to exercise the
said power, there must be a maladministration by the trustees and to find out whether there is any maladministration or not, it is the duty of the
second respondent to issue notice to the trustees, hear their objections and only after prima facie satisfaction of the maladministration, the second
respondent is empowered to exercise the power u/s 45(1) of the Act and appoint the Executive Officer.
Here in this case, based on the complaint/representation given by the 6th respondent, the impugned order is passed at the instance of the 6th
respondent, appointing 5th respondent as Executive Officer, but without issuing notice to the petitioner or other trustees. A perusal of the impugned
order amply establishes the fact that the second respondent has not issued any notice to any of the trustees including the petitioner. The
administration of the temples, particularly the denominational temples, by the trustees is a valuable right and the same cannot be lightly divested
under the guise of exercising power u/s 45(1) of the HR&CE Act. The impugned order having civil consequences against the petitioner and other
trustees, the second respondent is bound to give notice to the petitioner and other trustees and only after hearing their objections, if any, the
Executive Officer can be appointed, if the explanation submitted by the trustees are not satisfied.
The Honourable Supreme Court in the decision reported in The Scheduled Caste and Weaker Section Welfare Association (Regd.) and
anothers Vs. State of Karnataka and others, , in paragraph 15 held as under,
It is one of the fundamental rules of our constitutional set-up that every citizen is protected against exercise of arbitrary authority by the State or its
officers. If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power and
the rule of natural justice operates in areas not covered by any law validly made. What particular rule of natural justice should apply to a given case
must depend to an extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the body of
persons appointed for that purpose. It is only where there is nothing in the statute to actually prohibit the giving of an opportunity to be heard, but
on the other hand, the nature of the statutory duty imposed itself necessarily implied an obligation to hear before deciding that the audi alteram
partem rule could be imported. ...
In the case on hand, the second respondent without giving notice to the petitioner or to other trustees straight away issued the impugned order
appointing the 5th respondent as Executive Officer vesting all the powers of the trustees, which action has got civil consequences. As held by the
Apex Court in the decision cited supra, when the rights of the parties are likely to be affected by virtue of his action in appointing the Executive
Officer, it is incumbent on the part of the second respondent to issue notice to them, for the compliance of principles of natural justice. Therefore,
we hold that the failure on the part of the second respondent in not issuing notice to the petitioner as well as to other trustees vitiates the impugned
order dated 17.3.2005.
In view of the above conclusion, both the writ petitions are allowed and the impugned order dated 17.3.2005 passed by the second
respondent is set aside. It is however open to the second respondent to issue notice to all the trustees and after hearing their objections, if any,
pass fresh orders, if the same is warranted.
In view of the disposal of the writ petitions as above, no orders are required in the writ appeals and the same are also disposed of. Connected
miscellaneous petitions are closed.