Judgment:
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :
11. 04.2014 CORAM THE HONOURABLE MR.JUSTICE S.NAGAMUTHU W.P.No.9594 of 2014 and M.P.No.1 of 2014 Arulmigu Vaithianathaswamy Devasthanam Represented by its Heriditary Trustee Sri-la-Sri Gurumaha Sannithanam of Dharmapuram Adheenam, Vaitheeswarankoil, Sirkazhi Taluk, Nagapattinam District. ... Petitioner vs. 1.The Government of Tamil Nadu represented by its Secretary, Tamil Nadu Development Religious Endowment and Information Department, Fort St.George, Chennai. 2.The Commissioner, Tamilnadu Hindu Religious Charitable Endowments Department, Nungambakkam High Road, Chennai. ... Respondents Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorari, calling for the records of the 2nd respondent in his proceedings Na.Ka.No.9060/2011/L.5 dated 12.02.2014 and also his consequential proceedings in Na.Ka.No.9060/2011/L.5 dated 24.03.2014 and quash the same. For Petitioner : Mr.M.Venkatachalapathy Senior Counsel for Mr.S.Sounthar For Respondents : Mr.S.Kandasamy, Special Government Pleader ORDER
The challenge in this writ petition is to the Show Cause Notice issued by the second respondent by his proceedings in Na.Ka.No.9060/2011/L.5 dated 12.02.2014 under Section 45(1) of Tamil Nadu Hindu Religious and Charitable Endowments Act (for short HR & CE Act), calling upon the petitioner to explain as to why an Executive Officer should not be appointed for the temple for a period of one year and his consequential proceedings in Na.Ka.No.9060/2011/L.5, dated 24.03.2014. In the said Show Cause Notice, as many as six alleged irregularities in the administration have been noted and for these reasons and for the better administration of the temple, it is stated in the Show Cause Notice that an Executive Officer should be appointed, as provided under Section 45 of the HR & CE Act.
2. This writ petition has been listed before me as a specially ordered case on the orders of the Hon'ble Acting Chief Justice. This writ petition has come up today for admission. Mr.S.Kandasamy, learned Special Government Pleader has entered appearance for the respondents. By consent the writ petition itself is disposed of.
3. I have heard the learned counsel on either side and I have also perused the records carefully.
4. Among other grounds, the main ground upon which the challenge is made is that the second respondent has got no jurisdiction to issue the impugned Show Cause Notice and to appoint an Executive Officer for the administration of the temple, since as required under Section 45(1) of the HR & CE Act, the Government has not issued any Rule prescribing the conditions upon which an Executive Officer could be appointed.
5. The learned Senior Counsel appearing for the petitioner would rely on the judgment of the Hon'ble Supreme Court reported in 2014 (1) CTC763[Dr.Subramanian Swamy and another v. State of Tamil Nadu and others]., wherein the Hon'ble Supreme Court, after having elaborately dealt with the power of the Commissioner under Section 45 of the HR & CE Act has held that the said power cannot be exercised by the Commissioner unless the Government prescribes the circumstances/ conditions, upon which such appointment could be made.
6. The learned Special Government Pleader appearing for the respondents would vehemently oppose this writ petition. According to him, in respect of a similar issue pertaining to the petitioner Temple, earlier there was a Civil Suit, which was taken to the Hon'ble Supreme Court by way of Civil Appeal No.272 of 1963. That case arose when Tamil Nadu Hindu Religious and Charitable Endowments Act, 1927 was in force. By the time when the Civil Appeal reached finality before the Supreme Court, HR & CE Act 1959 had come into force. While dealing with Section 45 of the new Act, in the said judgment, the Hon'ble Supreme Court has made the following observations. ".It is brought to our notice that in 1959 the Madras Hindu Religious and Charitable Endowments Act (Act XXII of 1959) was passed by the Madras Legislature. Under S.45 thereof, the Commissioner is given a plenary power to appoint an Executive Officer to any temple and, therefore, it is argued, this Court shall not interfere with the clause of the scheme providing for the appointment of an Executive Officer to the temple in question. The said Act was passed subsequent to the filing of the suit. We are deciding this appeal on the basis of the circumstances obtaining in the year 1951 when the suit was filed. It may be that under the new Act the Commissioner has higher powers than he had under the 1951 Act and subsequent events may call for the exercise of those powers. Our judgment will not preclude the Commissioner to take any action, under the new Act as the circumstances demand. With these observations we shall proceed to modify the scheme framed by the High Court.".
7. Referring to the same, the learned Special Government Pleader would submit that the Commissioner has got power to appoint Executive Officer. He would further submit that the judgment in Dr.Subramanian Swamy's case (supra), has no application to the facts of the present case, because that was a case relating to 'Religious denomination', which enjoys a special status under Article 26 of the Constitution of India, whereas, the petitioner Temple is not a 'Religious Denomination' temple. He would further submit that in Dr.Subramanian Swamy's case (supra), the appointment of the Executive Officer came to be set aside on yet another ground, viz., the tenure of the Enquiry Officer had not been fixed. In this case, according to the learned Special Government Pleader, the proposal is to appoint an Executive Officer for a period of one year. Thus, none of the grounds in Dr.Subramanian Swamy's case (supra) are available for the petitioner in the present case. Therefore, according to the learned counsel, the writ petition is liable to be dismissed.
8. I have considered the above submissions.
9. In my considered opinion, the issue relating to the power of the Commissioner, HR & CE to appoint an Executive Officer is no more res integra in view of the elaborate judgment rendered by the Hon'ble Supreme Court in Dr.Subramanian Swamy's case. Before reading the said judgment, let us have a quick look into Section 45(1) of the HR & CE Act.
10. Section 45 (1) of the HR & CE Act reads as follows:- ".45.Appointment and duties of Executive Officers-(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.".
11. The Hon'ble Supreme Court dealt with the words ''subject to such conditions as may be prescribed". as found in Section 45(1) of the HR & CE Act. The Hon'ble Supreme Court, while considering the said phrase, had taken note of the Rule making power of the Government under Section 116 of the HR & CE Act. The Hon'ble Supreme Court had also interpreted the word ".such". in Section 45(1) of the HR & CE Act. After having made a scientific analysis of these provisions and in the light of various previous judgments of the Supreme Court, the Hon'ble Supreme Court in Paragraphs 43, 44 and 49 has held as follows:- ".43. Section 45 of the Act 1959 provides for appointment of an Executive Officer, subject to such conditions as may be prescribed. The term 'prescribed' has not been defined under the Act. Prescribed means prescribed by Rules. If the word 'prescribed' has not been defined specifically, the same would mean to be prescribed in accordance with law and not otherwise. Therefore, a particular power can be exercised only if a specific enacting law or Statutory Rules have been framed for that purpose. (See: Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hirala, AIR1962SC527 Hindustan Ideal Insurance Co. Ltd. v. Life Insurance Corporation of India, AIR1963SC1083 Maharasthra SRTC v. Babu Goverdhan Regular Motor Service Warora and Ors., AIR1970SC1926 and Bharat Sanchar Nigam Ltd. and anr. v. BPL Mobile Cellular Ltd. and ors., 2008 13 SCC597. 44.Shri Subramonium Prasad, learned AAG, has brought the Judgment in M.E.Subramani and ors. v. Commissioner, HR & CE and ors. AIR1976Mad 264, to our notice, wherein the Madras High Court while dealing with these provisions held that the Commissioner can appoint an Executive Officer under Section 45 even if no conditions have been prescribed in this regard. It may not be possible to approve this view in view of the Judgments of this Court referred to in Para 41 supra, thus, an Executive Officer could not have been appointed in the absence of any rules prescribing conditions subject to which such appointment could have been made.
49. We would also like to bring on the record that various instances whereby acts of mismanagement maladministration misappropriation alleged to have been committed by Podhu Dikshitars have been brought to our notice. We have not gone into those issues since we have come to the conclusion that the power under the Act 1959 for appointment of an Executive Officer could not have been exercised in the absence of any prescription of circumstances conditions in which such an appointment may be made. More so, the order of appointment of the Executive Officer does not disclose as for what reasons and under what circumstances his appointment was necessitated. Even otherwise, the order in which no period of its operation is prescribed, is not sustainable, being ex facie arbitrary, illegal and unjust.".
12. A plain reading of the above judgment would make one to understand beyond doubt that the Supreme Court has once for all declared it as a law that under Section 45(1) of the HR & CE Act, the Commissioner can appoint an Executive Officer for a Temple, provided, there comes into being a Rule prescribing the circumstances/conditions, upon which such power can be exercised by the Commissioner. But so far, no such Rules have been issued by the Government under Section 116 of the HR & CE Act, prescribing such circumstances/conditions. As has been held by the Hon'ble Supreme Court, unless such Rules are issued, the second respondent cannot exercise his power at all to appoint any Executive Officer, irrespective of the situation prevailing in the administration of the Temple.
13. Now turning to other arguments of the learned Special Government Pleader, the earlier judgment of the Hon'ble Supreme Court in Civil Appeal No.272 of 1963 is no answer to the issue. That was a case under the Tamil Nadu HR & CE Act, 1927. The Hon'ble Supreme Court had no occasion to deal with the power of the Commissioner under Section 45 of Act 22 of 1959. Therefore, the observations made in the said judgment cannot be taken as a law declared by the Hon'ble Supreme Court with reference to the power of the Commissioner under Section 45(1) of the HR & CE Act.
14. So far as the next contention of the learned Special Government Pleader that the judgment in Dr.Subramanian Swamy's case (supra) relates to a temple established by a religious denomination and therefore, the same cannot be imported to the facts of the present case is concerned, the same is not tenable. The Hon'ble Supreme Court in Dr.Subramanian Swamy's case had no occasion to distinguish between Religious Denomination temple and any other public temple. The Hon'ble Supreme Court has comprehensively dealt with the power of the Commissioner under section 45 of the HR & CE Act.
15. So far as the last contention of the learned Special Government Pleader that in Dr.Subramanian Swamy's case, the Hon'ble Supreme Court interfered with the order of appointment of the Executive Officer since tenure of the Executive Officer had not been prescribed, I am of the view that it was one of the grounds and not the only ground. Therefore, this argument deserves only to be rejected.
16. In view of the above, I hold that unless Rules are issued by the Government and unless the conditions/circumstances prescribed in the said Rules are satisfied, the Commissioner shall have no power to appoint any Executive Officer, irrespective of whether it is Religious Denominational Temple or not. In such view of the matter, in the instant case, I hold that the impugned notice is wholly without jurisdiction and therefore, the same is liable to be set aside.
17. Mr.S.Kandasamy, learned Special Government Pleader appearing for the respondents submitted that this Court may make it clear that this order will not in any manner affect the appointments of Executive Officers in respect of other Temples in the State, which have already been come into force. In my considered opinion, it is not possible to confine the answer to the legal issue only to this case in view of the authoritative judgment of the Hon'ble Supreme Court in Dr.Subramanian Swamy's case (supra).
18. After the judgment of the Hon'ble Supreme Court in Dr.Subramanian Swamy's case, there has arisen urgent need for the Government to frame Rules under Section 116 of the HR & CE Act for this purpose. Otherwise, I am sure, the maladministration of temples in the State cannot be curtailed and the Commissioner will not be in a position to regulate the administration of the Temples by appointing Executive Officers. The learned Advocate General, who was incidentally present in Court submitted that soon the Government is going to issue appropriate Rules under Section 116 of the HR & CE Act and Section 45(1) of the HR & CE Act. I am only hopeful that this Government would do so without any further delay.
19. In the result, the writ petition is allowed and the impugned Show Cause Notice dated 12.02.2014 and the consequential proceedings dated 24.03.2014 are set aside. However, it is open for the second respondent to initiate action, after the Rules come into force and if the conditions/circumstances prescribed in the Rules are satisfied. No costs. Connected miscellaneous petition is closed. 11.04.2014 Index : Yes Internet : Yes svki To 1.The Government of Tamil Nadu represented by its Secretary, Tamil Nadu Development Religious Endowment and Information Department, Fort St.George, Chennai. 2.The Commissioner, Tamilnadu Hindu Religious Charitable Endowments Department, Nungambakkam High Road, Chennai. S.NAGAMUTHU,J.
Svki W.P.No.9594 of 2014 11.04.2014