PL.S.KR.L. Chandramouleeswaran and Others vs The Commissioner, H.R. and C.E. Administration Department and Others

Jayarama Chouta, J.—The Petitioners who are the trustees of PL. S. Sri Kailasanathaswamy Nithiyakalyani Ambal Devasthanam have filed

the writ petition for issue of a writ of certiorarified mandamus calling for the records of the 1st respondent in Na. Ka. No. 9113/86/L-1, dated

11.1.1987 and quash the same and consequently direct the respondents 1 and 2 to handover the administration and management of the temple and

its properties to the 1 st petitioner to enable him to act as turn Trustee.

The facts which led the petitioners to file this writ petition are as follows:

There is a private temple called PL. S. Sri Kailsanathasamy Nithiyakalyani Ambal Devasthanam belonging to the petitioners and respondents 3 to

In respect of the above Devasthanam regarding the turn management and the expenses to be incurred for the conduct of the temple and for the

purpose of carrying out Kattalai etc, a reference was made to certain panchayatdars for arbitration. The panchayatdars gave a verdict embodying

it in a Registered document dated 12.12.1951. The version of the panchayatdars was accepted by all the parties by subscribing their signatures to

the same signifying their consent. It was inter alia agreed that the eldest male member should be the trustee of the temple and each branch should

act as Turn Trustees for two years, due to dispute among the members of the family, one Ramanathan Chettiyar, the father of the respondents 4

and 5 filed a suit in O.S. No.43 of 1970 on the file of Sub Court, Devakottai, for declaration and for rendering accounts. The said suit was

decreed, directing the 1st petitioner to handover possession of all the properties belonging to the Trust. Against the said Judgment and decree the

1st 3rd petitioners filed A.S. No. 508 of 1975 on the file of High Court, Madras. When the appeal was pending, the plaintiff Ramanathan Chettiar

namely the 1st respondent in A.S. No. 508 of 1975 died and his legal representatives were brought on record, As per the Court order dated

4.7.1979. When the appeal was taken up for final hearing, all the parties to the appeal filed a memorandum of compromise duly signed by the

parties requesting the Court to pass as decree in terms of compromise. Accordingly this Court on 24.7.1979 passed a judgment in the appeal

whereby a decree in terms of compromise in substitution to the decree in O.S. No. 43 of 1970 was passed. As per the terms of compromise, the

appointment of new Trustee of the Trust shall be done in accordance with the terms of the Trust Deed and the parties were directed to seek

suitable directions before the Sub Court, Devakottai.

Accordingly the 1st petitioner filed I.A. No. 815 of 1979 on the file of Sub Court, Devakottai, to appoint him as Turn Trustee and for a

direction to the respondents to hand over possession of all jewels belonging to the temple. They also filed I.A. No. 629 of 1980 for injunction

restraining the legal representatives of the deceased plaintiff who are the respondents 4 and 5 in this writ petition, from handing over the

administration of the temple to the Executive Officer or other Officials of the H.R. & C.E. Department. The 1st petitioner in his affidavit filed in

support of I.A. No. 629 of 1980 has stated that the legal representatives of the plaintiff were making arrangements for the appointment of an

Executive Officer to the temple and handing over the jewels to him and that they have no right to move the H.R. & C.E. Department for

appointment of an Executive Officer especially when four out of-five Trustees have not given their consent. Under those circumstances he filed I.A.

No. 629 of 1980 for injunction restraining the respondents from handing over charge to the Executive officer.

Both I.As. were taken up together and the Subordinate Judge, Devakottai held that the appointment of Executive Officer is not legal and not

binding upon 1st petitioner and other members of the family. As regards I.A. No. 815 of 1979 the Court has directed the 1st petitioner to obtain

possession of the Trust properties from the Executive Officer who has assumed charge before an order of injunction was made. In the result, I.A.

No. 815 of 1979 was allowed and I.A. No. 629 of 1980 was dismissed.

Against the order passed in I.A. No. 815 of 1979 the 5th respondent, one of the legal representatives of the deceased plaintiff filed C.R.P. No.

627 of 1981 before this Court and the same was dismissed by a order dated 6.4.1981. However, this Court has directed the 1st petitioner to take

out proper application before the Sub Court, Devakottai for getting possession of the Trust properties from the Executive Officer.

Accordingly the 1st petitioner filed E.P. No. 8 of 1981 in I.A. No. 815 of 1979 under Order 21, Rules 31 and 35 of C.P.C. praying to order

delivery of movable properties. From the Executive Officer. The respondents 1 and 2 in I.A. No. 815 of 1979 were set ex parte. The executive

officer raised on objection that he was not a party to the proceeding and therefore he was not bound by the decree or order of the Court. The

Subordinate Judge overruled the objection of the Executive Officer dated 22.4.1981 and appointed one Advocate as Commissioner for handing

over the properties to the 1st petitioner from the Executive Officer. The Executive Officer did not co-operate with him. The Judge permitted the

Advocate Commissioner to break open the locks and. deliver possession with police aid if need be. In the meanwhile the Executive Officer

approached this Court and filed C.R.P. No. 1541 of 1981 and obtained ex parte interim stay of all further proceedings in E.P. No. 8 of 1981. The

said C.R.P. was taken up for final hearing and this Court began order dated 30.9.1981 allowed the revision petition holding that the Sub Court,

Devakottai had no jurisdiction to order delivery of any property in the Custody of the Executive Officer. However, this Court observed that the

question of entitlement of jewellery and other properties on the one side and the Executive Officer on the other cannot be gone into in the Civil

revision petition and the matter has got to be adjudicated upon by a proper forum in appropriate proceedings.

Hence the petitioner filed the W.P. No. 1561 of 1982 in this Court challenging the order of the 1st respondent dated 21.8.1980 in P.R.O. No.

50208 of 1980 appointing the 2nd respondent as the Executive Officer of the temple in question. Pending the said disposal of the above petition,

this Court was pleased to grant stay of recovery of the immovable properties from custody of the 1st petitioner in W.M.P. No. 2182 of 1982 and

the said interim stay was made absolute.

The writ petition was taken up for final hearing on 10.9.1986 and this Court passed the following order:

This is the case in which an Executive Officer for the Temple in question u/s 45(1) of the Tamil Nadu Act 21 of 1959 came to be passed under the

impugned order. Admittedly, the Executive Officer took charge and has been functioning. Therefore, at this stage, after the lapse of long number of

years, it is not desirable to disturb the arrangement. However, the Commissioner, H.R. & C.E. Board may consider having regard to the

compromise memo dated 24.7.1979 in A.S. No. 508 of 1975 and in view of the present state of affairs, whether the continuance of the Executive

Officer is necessary. If so, he shall give notice to all the writ petitioners and pass orders on merits. This shall be done on or before 30th November,

1986.

Pursuant to the said order, the 1st respondent in his letter dated 23.10.1986 in Roc. No. 9111/86/LII directed the first petitioner to furnish his

objections to the continuance of the Executive Officer for the temple. The first petitioner sent a letter to the 1st respondent on 10.11.1986

requesting him to grant to grant him two more weeks to submit his explanation. However the first respondent by his letter dated 17.11.1986

instructed the first petitioner to file statement of objections on or before 24.11.1986 failing which an order will be passed on the basis of the

available materials on records. The first petitioner submitted his explanation together with the documents relied upon, on 24.11.1986 by registered

post acknowledgment due and the same was received by the 1st respondent on 25.11.1986. The first respondent without considering any of the

objections raised by the 1st petitioner in his letter dated 24.11.1986 and letter dated 2.1.1987 passed an order on 11.1.1987 stating that the

continuance of Executive Officer to the temple in question is necessary in view of the fact there is disputes between the hereditary turn trustees and

that the temple possesses valuable jewels and immovable properties.

The said order has been challenged in this writ petition on various grounds.

On behalf of the respondents, the first respondent Commissioner, H.R. & C.E. Administration Department has filed a counter affidavit denying

most of the allegations. He has stated that the temple in question was declared as a excepted temple under Act 2 of 1927 by the Hindu Religious

Endowment Board by Order No. 628 dated 11.2.1928. Therefore it is incorrect to say that the temple is a private temple belonging to the

petitioners. He has further submitted that the declaration obtained is entirely different from one that could be obtained u/s 63(a) of the H.R. & C.E.

Act 22 of 1959. Any temple having trustees either hereditary or otherwise whether they are either in de jure or in de facto management, the

provisions of the H.R. & C.E. Act will apply.

He has further stated that the delivery of possession by the Executive Officer ordered by the lower court has been set aside in C.R.P. 1541 of

1981 on the file of High Court, Madras on the ground that the decree was not executable against the Executive Officer as the decree is not binding

on him. According to him that the writ petitioner is misconstrued in having resorted to the High Court on the observation made that the matter has

got to be adjudicated in a proper forum. The order of appointment was made in 1980. The appointment of Executive Officer was not challenged

and the Executive Officer is still in management. It is only in the W.P. No. 1561 of 1982 the appointment of the Executive Officer was challenged.

He has further submitted that the explanation of the petitioner was considered before passing the impugned order and the petitioner''s objection for

the discontinuance of the Executive Officer is not at all tenable.

I heard the learned Counsel Mr. AR. L. Sundaresan on behalf of the petitioners and Mr. Subramaniam on behalf of the respondents 1 and 2.

They took me to the affidavit and counter Affidavit.

There is no dispute that the Executive Officer has been appointed by the Commissioner 1st respondent by exercising power u/s 45 of the Tamil

Nadu Hindu Religious and Charitable Endowments Act, 1959 (hereinafter referred to as ''Act''). Section 45 of the said Act reads as follows:

(1) Notwithstanding anything contained in this Act, the Commissioner may appoint, subject to such conditions as may be prescribed, an executive

officer for any religious institution other than a math or a specific endowment attached to a math.

(2) The Executive Officer shall exercise such powers and discharge such duties as may be assigned to him by the Commissioner.

(3) The Commissioner may define the powers and duties which may be exercised and discharged respectively by the executive officer and the

trustee, if any, of any religious institution other than a math or a specific endowment attached to a math.

(4) The Commissioner may, for good and sufficient cause, suspend, remove or dismiss the executive officer.

The ground of attack of the learned Counsel for the petitioners was that the 1st respondent has not complied with the directions issued by this

Court in W.P. No. 1561 of 1982. This Court has directed that the Commissioner, H.R. & C.E. Board may consider having regard to the

compromise memo dated 24.7.1979 in A.S. No. 508 of 1975 and in view of the present state of affairs, whether the continuance of the Executive

Officer is necessary. If so, he shall give notice to all the writ petitioners and pass orders on merits.

As per the said A.S. No. 508 of 1975 the parties have agreed for turn trustee of the Trust as per the terms of the Trust deed. That being so,

the 1st respondent on the basis of the application submitted by two of the five trustees should not have exercised power u/s 45 of the Act

appointing an Executive Officer ordering continuance of his presence to administer the temple. He has further submitted that if these two trustees

are not interested in acting as a trustee only during their turn, the executive officer should have been appointed and not during the tenure of the

petitioners.

He has also further pointed out that in notice issued by the 1st respondent he has not intimated on what grounds he has to appoint Executive

Officer. He pointed out that the reasons given by the Commissioner the 1st respondent appointing an Executive Officer are not genuine grounds for

the appointment. He submitted that the Commissioner should not have erroneously exercised his power u/s 45 of the Act while appointing an

Executive Officer.

His further submission was that the impugned order is liable to be set aside on the ground that the same does not take into account and follow

the compromise memo dated 24.7.1979 in A.S. No. 508 of 1975 on the file of this Court. The first respondent has not found nor had any material

to show that there is mismanagement of the temple and of its properties. In the absence of any irregularities or illegal action by any of the trustees

the first respondent is not correct in ordering continuance of the Executive Officer to administer the temple in question. The first respondent has

exceeded his jurisdiction by ordering the continuance of the Executive Officer to the temple in question, since the same can be done only when the

irregularities in administration are found or when mismanagement of the temple properties are alleged. In the absence of such allegations the 1st

respondent has no jurisdiction to appoint an Executive Officer and to order continuance of his presence to administer the temple.

In this connection the learned Counsel for the petitioner invited my attention to two decisions of this Court. The first decision on which reliance

was placed is a case reported in D.R. Nagarajan Vs. The Commissioner, Hindu Religious and Charitable Endowments (Admn.) Department, and

placed reliance on the following passage:

It is true that Section 45 of the Hindu Religious and Charitable Endowments Act does not contemplate any notice or enquiry, but that does not

mean that the Commissioner, if he so wills, though there is no reason whatever justifying, can exercise the power under Sub-section (1) and

appoint an Executive Officer for a religious institution. 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

the Executive Officer is necessary, he may properly exercise his power.

In the present case, the Commissioner listed certain irregularities but hardly waited to enquire of the appellant for his explanation. The Assistant

Commissioner had given a date for the production of accounts; even before the expiry of that date, the Commissioner chose to make the

appointment of an Executive Officer. This is not a proper exercise of power.

In the said decision this Court has further observed as follows:

We find from the appendix to the order appointing an Executive Officer that the appellant as a hereditary trustee has been deprived of almost all his

powers of administration of the temples, except that formally he would be entitled to possession of all immovable properties and movables,

livestock and grains. The Executive Officer would be the person to receive all income in cash and kind and all offerings and he would be the

person to make disbursements and incur all expenditure on behalf of the temples. He was to draw up a rough estimate of the probable

disbursements and expenses to be made and incurred and obtain previous sanction of the trustee. The receipts were to be deposited by the

Executive officer in the account of temples. He is empowered to have control over all office holders and servants of the temples, and he would

have the powers of superintendence, though subject to the disciplinary control of the trustee. He shall be in charge of the office of the temples,

responsible for the proper maintenance of all records, accounts and registers and for the due submission to the appropriate authorities of the

budget reports, accounts, statutory returns and other information. He is the one responsible for collection of all incomes and moneys due to the

institution in proper time and for safeguarding the interest of the institution. It is his duty to see that all provisions and stores are supplied to the

intended purposes and he is to check at frequent intervals that they are supplied for use according to the dhittam. The duty of the Executive Officer

included to see that pujas, festivals and other services are performed according to the usage and dhittam. He is also the person entitled to sue and

be sued on behalf of the temples. The allotment of work to the office holders and servants goes also with him, 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.

Placing reliance on the decision, the learned Counsel for the petitioner pointed out that before making the appointment the 1st respondent

should have informed the hereditary trustees 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 the Executive Officer is necessary, he may properly exercise his power. He also

placed reliance on yet another decision reported in Commissioner H.R. & C.E, (Admn.) Dept. v. K. Jothiramalingam 99 L.W. 600 and invited my

attention to the following passage:

Though Section 45(1) of the T.N.H.R. and C.E. 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.

The power vested in the Commissioner u/s 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 fairplay require that the Commissioner should properly exercise the power u/s 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 on Executive Officer and after calling for

an explanation from him with reference to the irregularities and mal administration 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 u/s 45(1)."" Placing reliance on these Principles laid down by this Court in the above decisions, the

learned Counsel submitted that the order passed by the 1st respondent is liable to be quashed.

On the other hand Mr. Subramaniam appearing on behalf of the respondents 1 and 2 submitted that the 1st respondent after giving notice to

the petitioners and to the other trustees, conducted a proper ''enquiry and passed the impugned order which does not suffer from any illegality or

impropriety. He further pointed out that by virtue of appointment of Executive Officer the trustees are not displaced but they are still there. In the

interest of welfare of the temple, the Executive Officer has been appointed and the petitioners cannot find fault with the Commissioner the 1st

respondent. He also pointed out in the original order of appointment of the Executive Officer, powers have been given to the trustees and they

cannot be said to be reduced to non entity. Hence he concluded by saying that there is not justifiable ground to interfere with the order of the

Commissioner.

Let me consider whether the order of the Commissioner, the 1st respondent suffers from the infirmities as pointed out in those two decisions

referred to above. There is no dispute that there was a consent decree between the trustees who have turn or rotation trustees, by a competent

Court. The appointment of Executive Officer has been made at the instance of two trustees only out of the total five trustees. In the notice issued to

the petitioners by the 1st respondent he has not narrated the grounds for appointment of Executive Officer. As held by the two decisions the

Commissioner should use the Section 45 of the Act very sparingly. A direction issued by the court that the Commissioner, H.R. & C.E. Board to

consider the compromise memo dated 24.7.1979 in A.S. No. 508 of 1975 for continuance of the Executive Officer has not been carried out by

the 1st respondent Commissioner. The power vested with the Commissioner u/s 45 of the Act in appointing the Executive Officer is to be

exercised reasonably and fairly, because the power by its nature is a drastic one. The order should point out that the temple is not likely to be

managed by the hereditary trustees. Hence such a power which is very drastic has to be exercised carefully and only where proper reasons existed

showing that the temple is not properly managed by the hereditary trustees. The power u/s 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. If the Commissioner feels that the two

trustees at whose instance the Executive Officer has been appointed are incapable of looking after the welfare of the temple in their turn or rotation,

the Commissioner can appoint the Executive Officer.

Hence for the reasons stated above, I allow the writ petition, However, there will be no order as to costs in this petition.