P. Harikrishnan vs The Assistant Commissioner Hindu Religious and Charitable Endowment (Administration Department) Nagercoil Kanyakumari District and The Fit Person/Executive Officer Arulmigu Isakki Amman Thirukoil Muppandal Thovalai and K. Balraj

Honourable Mr. Justice K. Chandru

The petitioner claims to be a Managing Trustee of Arulmighu Easwari Bathrakaliamman temple Neendakarai ''B'' village, Esanthangu, Muttom

Post, Agastheeswaram Taluk, Kanyakumari District. In this writ petition, the petitioner challenges the order dated 20/7/2012 passed by the

second respondent/fit person-cum-Executive Officer wherein by which he was purported to break open the petitioner''s temple unlawfully and

consequently forbear the respondents from in any manner taking forcible administration of the petitioner temple without recourse to Section 101 of

the HR & CE Act.

When the writ petition came up on 26/7/2012, this Court ordered notice regarding admission. Pending that, an order of interim stay was granted

till 2/8/2012.

Aggrieved by the grant of interim stay, the second respondent/fit person has filed a vacate stay application in M.P. (MD) No. 4 of 2012

together with supporting counter affidavit dated 13/8/2012.

In the meanwhile, one K.Balraj claiming to be impleaded himself as one of the respondents, filed M.P. (MD) No. 3 of 2012 and that when the

impleading petition was allowed by this Court on 27/8/2012, he had also filed a vacate stay application before this Court in M.P. (MD) No. 5 of

2012.

In the light of all these facts, the main writ petition itself is taken up for final disposal.

It is seen from the records that the petitioner claims to be the Managing Trustee of the said temple. It is stated that the temple is managed by the

hereditary trustees as per the compromise decree made in O.S.No.37 of 1971 on the file of the Sub-Court, Nagercoil on 30/4/1975. The

hereditary trustees are in continuous possession and Management of the temple.

With a view to grab the temple administration from the hereditary trustees, some strangers filed a suit in O.S.No.62 of 1998 before the Sub-

Court, Nagercoil and for framing a scheme for administration. In the said suit, the Commissioner of HR & CE was the eighth defendant. He had

filed a written statement accepting the legal position of the petitioner.

However, a writ petition was filed in W.P.No.1273 of 2006 challenging the appointment of a fit person by the first respondent/Assistant

Commissioner, HR & CE dated 18/1/2006. In that writ petition, the petitioner had obtained an interim stay.

One Kumaresan filed W.P.No.8496 of 2006, seeking for a direction to the Commissioner, HR & CE to take over the administration of the said

temple. Both the writ petitions were heard and by a common order, they were disposed of.

Aggrieved by the said order, the present petitioner filed W.A.Nos.614 and 720 of 2008. Pending the writ appeals, the Division Bench of this

Court by an order dated 29/9/2008, granted an order of interim stay and it was observed that if the administration of the temple has to be taken

away, a request should be made u/s 101 of the HR & CE Act and apply to the concerned Judicial Magistrate for enforcement of the order of

delivery.

However, both the appeals were came to be dismissed by the Division Bench by a final order dated 27/3/2012. In that order, the Division

Bench had held that already an order was passed by the Deputy Commissioner, HR & CE on 10/5/1972 in O.A.No.23 of 1967 that the

petitioner''s father had a second round of litigation and the order dated 10/5/1972 in O.A.No.23 of 1967 as well as the order passed by the

Commissioner in A.P.No.53 of 1974 dated 31/12/1975 were not challenged and became final.

The compromise decree referred to by the petitioner do not bind the HR & CE Commissioner. The judgment delivered by the Civil Court

dated 30/4/1975 cannot be accepted as one bringing the change in the order passed by the Commissioner regarding the status of trusteeship in

respect of public temple. Thus, the statutory order passed by the Commissioner and the Deputy Commissioner on status of the temple is a public

temple and the Management of his completion by elected body of trustees had attained finality. No trusteeship can be claimed over a public temple

by any one of the parties including the present petitioner.

It is also stated that the petitioner earlier filed a suit in O.S.No.62 of 1998 before the Sub-Court, Nagercoil, seeking for a declaration that

Bathrakaliamman as private or public, was subsequently withdrawn. Hence the order appointing the fit person has been passed validly.

The order passed by the Single Bench was correct and it was also stated that the petitioner though filed the writ petition did not file in a

representative capacity and he has not claimed the trusteeship on the basis of the election as a representative to the Community at large. In

paragraph 20, it was observed as follows:-

Given the fact that the decisions referred to by the Learned Counsel for the appellants are all related to a case of disturbance to the claim as

hereditary trustees and not as to the status of a body called as hereditary trusteeship, we do not find any assistance from any of these decisions.

There is no dispute as to the principles of law which had been laid down in all these decisions as regards the scope of jurisdiction of the Deputy

Commissioner. The dispute herein is as to whether at all there existed any hereditary trusteeship in the temple. Given the above said fact and the

dispute herein not as to the right of the petitioner to remain so, in the absence of recognition as to the claim of the appellants as hereditary trustees

entrusted with the responsibilities to manage the affairs of the temple, we reject the reliance placed by the appellants on the decisions referred to

above. In the circumstances, we have no hesitation in confirming the order of the learned Single Judge. Accordingly, these writ appeals stand

dismissed.

After rejecting the case of the petitioner and allowing the case of Kumaresan, the father of the person was impleaded as the third respondent.

In paragraph 21, the Division Bench has held as follows:-

As already pointed out, as far as W.P.No.13865 of 2011 is concerned, since the prayer itself is for a limited purpose, nothing survives in the said

writ petition. We do hope that the HR & CE Department would act promptly to take care of the administration of the temple and the appointment

of a fit person shall not be a permanent solution for the management of the temple.

It is now claimed by the petitioner that as against the order passed by the Division Bench, rejecting his claim directing the Department to take

over the temple, he preferred SLP before the Supreme Court and as per the communication sent by the Advocate on record dated 9/5/2012, the

SLP has been filed against the judgment and the matter is pending consideration by the Honourable Supreme Court.

Even after three months since the date of the said communication, the petitioner has not produced any interim order passed by the Supreme

Court. Therefore, as on date, the mandamus issued by the Single Bench, confirmed by the Division Bench to the Department to take care of the

administration of the temple.

Notwithstanding the same, the petitioner had sent a letter dated 7/6/2012 to the second respondent/Executive Officer of the said temple stating

that when the matter is pending before the Honourable Supreme Court, the fit person cannot interfere with the administration of the Managing

Trustee and he cannot break open the temple till the Supreme Court passes the final order. It is not clear as to where the petitioner had got right to

question the same in spite of a clear direction issued by the learned Single Judge and confirmed by the Division Bench.

In view of all the above, the present writ petition is clearly misconceived and this Court is not willing to help the petitioner, who has filed the

present writ petition contrary to the direction issued by the earlier Division Bench.

Mr.Prabhu Rajadurai Learned Counsel for the petitioner referred to the interim order dated 29/9/2008 passed by the earlier Division Bench in

W.A (MD) No. 614 of 2008.

To contend that in any circumstances, assailant of Section 101 of the HR CE Act is mandatory.

A perusal of Section 101 of the HR & CE Act, only enables the Department in putting the trustees or Executive Officer in possession of the

temple and in that course of the same, Section 101 2, it is stated that Magistrate of First class can appoint a Receiver to take possession of such

properties or such portion thereof.

A mandamus issued by this Court is clearly binds not only the department including the petitioner. The petitioner cannot refused to hand over

the properties of the temple and file an another writ petition if which allowed goes contrary to the earlier direction issued by this Court. Further, the

Single Bench as well as Division Bench clearly found that the petitioner''s party to continue as a trustee is not substantiated by any manner known

to law. Therefore, the same is dismissed. The petitioner without any further obstacle is directed to hand over the administration of the temple to the

second respondent/fit person. Any failure on his part will be viewed strictly by this Court. No costs. Consequently, the connected Miscellaneous

Petitions are also dismissed.