Full Judgment
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:
24. 06-2014 CORAM THE HONOURABLE MR. JUSTICE S.RAJESWARAN W.P.No.32155 of 2012 and M.P.Nos.1 and 2 of 2012 V.Muthukrishnan .. Petitioner vs. 1.The Commissioner, Hindu Religious and Charitable Endowment Board, 119, Uthamar Gandhi Salai, Nungambakkam, Chennai-34. 2.The Joint Commissioner, Hindu Religious and Charitable Endowment Board, 119, Uthamar Gandhi Salai, Nungambakkam, Chennai-34. 3.The Assistant Commissioner, Hindu Religious and Charitable Endowment Board, 119, Uthamar Gandhi Salai, Nungambakkam, Chennai-34. 4.The Executive Officer, Arulmigu Sridevi Pudhiya Periya Palayathamman Kovil, Pallavaram, Chennai-43. .. Respondents Writ Petition is filed under Article 226 of the Constitution of India, praying for the issue of a Writ of Certiorari, to quash the order passed by the third respondent in Che.Mu.Na.Ka No.2955/2011/Aa2 dated 10.8.2011. For Petitioner : Mr.Venkatachalapathi, Senior Counsel for Mr.S.V.Vijay Prashanth. For Respondents : Mr.Kandasamy, Special Government Pleader (HR&CE) ORDER
The petitioner has filed the above writ petition praying for the issuance of a Writ of Certiorari, to quash the order passed by the third respondent in Che.Mu.Na.Ka.2955/2011/Aa2 dated 10.8.2011.
2. The case of the petitioner is that the petitioner claims to be a hereditary trustee of Arulmigu Sridevi Pudhiya Palayathamman Kovil. In the year 1918, the paternal grand father of the petitioner, Mr.Sri Thiruvenkata Pillai, was administering the affairs of the temple. After the demise of his paternal grandfather Mr.Sri Thiruvenkata Pillai, his brother Sri Veerasamy Pillai was administering the temple affairs. After the lifetime of his grandfather, petitioner's father Sri V.Venkatesa Pillai, succeeded the office of the Trustee and administered the affairs of the temple. After the demise of his father on 12.9.1995, the office of the trustee of the temple vested with the petitioner, both by succession and usage, and since then he has been in the administration of the temple. All the festivals during the year are being conducted properly, in particular Aadi festival. So also the daily poojas.
3. The petitioner along with his brother Durairaj, filed an application before the HR&CE Administrative Department, Nungambakkam, Chennai-34, for the appointment of hereditary trustee in O.A.No.8 of 2012 and the same is pending. While so, the fourth respondent, the Executive Officer tried to disturb the peaceful functioning of the Aadi function for the year 2012 and informed that he was removed from the post of trustee. Regarding the alleged removal from the post of Trustee, there was no notice nor any enquiry conducted nor any order served on him. He saw the orders, only when a suit was filed against him and his deceased brother in O.S.No.615 of 2012 and an order of injunction was obtained in I.A.No.1430 of 2012 before the Principle District Munsif, Alandur on 23.8.2012. Only then the petitioner was aware of the interference by the Department in the administration.
4. The fourth respondent due to personal animosity, has not served the orders on the petitioner. While so, by the impugned order, the third respondent posted a fit person for the subject temple to manage its affairs. But no notice was served on them nor they were heard before appointing a fit person. Hence, the petitioner has come up with the above writ petition for the abovesaid prayer.
5. A counter affidavit has been filed by the fourth respondent. While denying the averments made in the petition, in the counter-affidavit, the fourth respondent would state that from 8.10.2011, the temple is being administered by the fit person appointed by the third respondent. That the petitioner is in the habit of creating troubles at the time of Aadi festival. Neither the petitioner nor his forefathers had maintained any statement of accounts pertaining to the income and expenditure of the temple. Further, neither the petitioner nor his forefathers were appointed as trustees to the temple by the department at any point of time and they only proclaimed themselves as trustee or hereditary trustee to the temple. In the year 2012, the petitioner and his brother filed a petition under Section 63(b) of the HR&CE Act, before the second respondent for appointing them as Hereditary Trustee and it is still pending. Therefore, due to periodical complaints received by the authorities about the mismanagement and mal-administration of the temple affairs, they were put in the necessity of appointing a fit person, as early as 10.8.2011 to protect the temple. Hence, the appointment made by the department, appointing a fit person is neither illegal nor irregular, warranting interference by this Court and therefore they sought for dismissal of the writ petition.
6. I have heard Mr.Venkatachalapathi, the learned Senior Counsel representing the petitioner and Mr.Kandasamy, the learned Special Government Pleader for HR&CE Department. I have also gone through the documents available on record, including the counter affidavit filed by the fourth respondent.
7. The learned Senior Counsel appearing for the petitioner, while drawing my attention to the impugned order dated 10.8.2011, would submit that on the face of it for want of prior notice, it is liable to be set aside. The appointment of a fit person in a temple, where the petitioner has been managing the temple affairs from the period of his grandfather, cannot be disturbed by way of this impugned order, which does not contain any reason whatsoever for appointing the fit person. He submits that merely stating that for administrative reasons the fit person is being appointed, cannot be a ground for disturbing the trustees and the petitioner herein, who have been administering the temple affairs for a number of years.
8. With regard to the petition filed by him and his brother under Section 63(b), before the authority, the learned Senior Counsel adds that the said petition has been pending with the department since the year 1999. While-so, without considering the same and passing orders on the same on merits, the appointment of fit person, that too, on the ground of administrative reason, can never be sustained both in law and on facts. The learned Senior Counsel for the petitioner would further add that when similar orders were passed by the department earlier appointing fit persons, without notice, the same was challenged before this Court and this Court held that attributing no reason for appointing the fit person, would amount to a non-speaking order being passed and warranting interference by this Court. Though there is a remedy available under Section 20(1) to approach the HR&CE Department i.e., before the authority, the learned Senior Counsel would add that when the order passed is contrary to the provisions of the statute, it was held by this Court that alternative remedy of appeal, cannot be a bar to maintain a writ petition. The learned Senior Counsel for the petitioner in support of his submission relies on the judgment of this Court made in Arulmigu Athanooramman Podarayasamy vs. Assistant Commissioner, HR&CE (Admn.) Department {CDJ 2012 MHC3783.
9. Therefore, he concludes that the impugned order, which is a non-speaking one, containing no reason excepting a line stating for administrative reasons the fit person is appointed, is liable to be interfered with and set aside.
10. Per contra, the learned Special Government Pleader for HR&CE Department would submit that in the interest of the temple, a fit person has been appointed and he also drew my attention to various complaints received in respect of this temple affairs. Therefore, he adds that only to protect and promote the temple interest, a fit person has been appointed and that cannot be found fault by the petitioner herein, who has been mismanaging the temple affairs. The learned counsel also adds that alternative remedy available under the Act, cannot be brushed aside by stating that the impugned order has been passed contrary to the statute.
11. I have heard the rival submissions carefully with regard to facts and citations.
12. Firstly, I would like to refer to the judgment referred to by the learned Senior Counsel appearing for the petitioner, i.e., CDJ 2012 MHC3783(cited supra), wherein a learned single Judge, while disposing of a similar petition, appointing a fit person, has held as follows:- 9. The contention of the learned counsel is that there were allegations of mismanagement of funds by the Trust. Therefore, it was felt necessary to appoint a fit person under Section 49 for the better management of the temple.
10. The reading of Section 49 shows, that Joint Commissioner could exercise powers under Section 49, in the interest of public generally, keeping in view the income and the properties of religious institution, taking in view the number of worshippers and importance of religious institution as a pilgrim centre or any other matter as may be proscribed. However, the reading of impugned order does not show any reason as stipulated, to appoint the fit person vide impugned order. The contention of learned counsel for respondent No.1 that appointment has been made as there were allegation of misuse of funds, cannot be accepted. It is well settled law that a quasi-judicial order should be self speaking order giving reasons for passing of the order. The defect in order cannot be cured by filing counter to justify the order.
11. The impugned order is a non-speaking order as it does not disclose any ground as per Section 49 for appointing a fit person. The impugned order thus is contrary to provisions of statute, the alternative remedy of appeal therefore cannot be a bar to maintainability of this writ. 13. A perusal of the above judgment would show that in an identical case where a fit person was appointed to manage the affairs of the temple without disclosing any reason, this Court had interfered with it by setting aside the same on the ground that it is a non speaking order. So, also in the impugned order herein, excepting stating that due to administrative reasons the fit person was appointed, nothing else has been stated. Therefore, in my considered opinion, it is also a non speaking order as it does not disclose the ground under Section 49 for appointing the fit person. Therefore, the writ petition is also to be allowed on the same lines.
14. In the result, the impugned order in this writ petition dated 10.8.2011, passed by the third respondent is set aside. No costs. Consequently, connected miscellaneous petitions are closed. 24-06-2014 Index : Yes/No.Internet: Yes/No.Svn Office to Note: Issue order copy by 9.7.2014. To 1.The Commissioner, Hindu Religious and Charitable Endowment Board, 119, Uthamar Gandhi Salai, Nungambakkam, Chennai-34. 2.The Joint Commissioner, Hindu Religious and Charitable Endowment Board, 119, Uthamar Gandhi Salai, Nungambakkam, Chennai-34. 3.The Assistant Commissioner, Hindu Religious and Charitable Endowment Board, 119, Uthamar Gandhi Salai, Nungambakkam, Chennai-34. S.RAJESWARAN,, J.
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