Full Judgment
PRAYER
W.A.(MD) No.614 of 2008 is filed under Clause 15 of the Letters Patent against the order dated 22.09.2008 made in W.P.No.1273 of 2006 on the file of the learned single Judge of this Court. W.A.(MD) No.710 of 2008 is filed under Clause 15 of the Letters Patent against the order dated 22.09.2008 made in W.P.No.8496 of 2008 on the file of the learned single Judge of this Court. W.P.(MD) No.13865 of 2011 is filed under Article 226 of the Constitution of India for the issue of a Writ of Certiorarified Mandamus to call for the records pursuant to the notice issued by the third respondent in Na.Ka.No.A3/5233/2011 dated 23.11.2011 and the consequential resolution passed on 28.11.2011, to quash the same and to consequently permit the petitioner to function as Trustee of Arulmigu Easwari Bathrakaliamman Temple, Esanthangu, Agastheeswaram Taluk, Kanyakumari District.
JUDGMENT
(Judgment of the Court was delivered by CHITRA VENKATARAMAN,J.)
1. W.A.(MD) Nos.614 and 710 of 2008 are as against the order of the learned single Judge in W.P.(MD) Nos.1273 of 2006 and 8496 of 2008 dated 29.2.2008. W.P.(MD) No.1273 of 2006 was filed by the writ appellant herein who originally challenged the appointment of a fit person by the first respondent. W.P.(MD) No.8496 of 2008 against which W.A.(MD) No.710 of 2008 is filed, was filed by one Kumaresan against the present appellant and others for a Writ of Mandamus to direct the Commissioner to take over the administration of the temple. W.P.(MD) Nos.8496 of 2008 and W.P.(MD) No.1273 of 2006 were considered in a common judgment. Learned single Judge dismissed the writ petition filed by the appellant and allowed the writ petition filed by Kumaresan. Challenging the same, the above appeals have been filed. W.P.(MD) No.13865 of 2011 is at the instance of the writ appellant, seeking a Writ of Certiorarified Mandamus to quash the notice issued by the third respondent dated 23.12.2011 and the consequential resolution dated 28.11.2011 and to consequently permit the petitioner to function as Trustee of Arulmigu Easwari Bathrakaliamman Temple, Esanthangu, Agastheeswaram Taluk, Kanyakumari District.
2. During the pendency of the appeals, under orders of this Court, the appellant was permitted to perform the Thiru Karthigai festival. On the demise of Kumaresan, the legal representatives of the said Kumaresan filed petitions before this Court, seeking direction to the Assistant Commissioner, H.R. & C.E., to conduct the Karthigai festival. By order dated 17th November 2009, this Court directed the appellant herein to conduct the festival under the supervision of the Fit person appointed who shall collect the contribution and maintain the account for the expenses of the festival for the year 2008. By proceedings dated 23.11.2011, the Commissioner, H.R. & C.E., stated that as per the orders of this Court, the fit person shall take steps to conduct the festival and maintain law and order and that no individual shall have any right to conduct the the festival. Accordingly, the Sub Collector, Nagercoil, the third respondent, passed an order, calling upon the 4th respondent herein, the Additional Superintendent of Police and the Assistant Commissioner to discuss about the difference between the two rival groups and participate in the meeting to be held on 28.11.2011 to discuss about the arrangement to be made for the conduct of the festival and to maintain law and order. Accordingly, on a peace committee meeting held on 28.11.2011 in the presence of the Collector and other law enforcement officials, it was decided that the Executive Officer of the Muppandhal Kizhakku Arulmigu Isakkiamman Thirukoil shall be the officer in charge of administering the Bathrakaliamman Temple. Based on the decision of this Court in the pending cases, the festivals would be performed; until such time, the rival groups were directed to maintain peace. Aggrieved by this, the petitioner filed the above writ petition in W.P.(MD) No.13865 of 2011, seeking the quashing of the proceedings of the Sub Collector and the consequential resolution passed and to permit the petitioner to function as Trustee of the temple.
3. Learned counsel appearing for the petitioner pointed out that since the resolution related to the performance of Karthigai Deepam festival on 08.12.2011, as of today, nothing survives in this writ petition. Leaving that writ petition aside, the order of the learned single Judge dated 29.2.2008 dismissing the writ petitions in W.P.Nos.1273 of 2006 and 8498 of 2008 and the facts herein, need to be noted.
4. The facts herein involve a series of differences existing between the members of the family as regards the administration of the temple called Arulmigu Easwari Bathrakaliamman Temple, Needankarai 'B' Village, Esanthangu, Muttom Post, Agastheeswaram Taluk, Kanyakumari District, claiming rights as hereditary trustees of the temple. Certain facts are not in dispute before us.
5. It is seen from the narration of facts that Arulmighu Badrakaliamman Temple is situated in Esantangu Village in Agateeswaran Taluk, Kanyakumari District. It is stated that Panguni Thiruvuzha and Thirukarthigai Thiruvuzha are celebrated in a grand manner every year. In respect of the trusteeship of the temple and its status as public temple, a dispute was raised by the petitioner's father and other members of their family leading to the filing of an application under the Hindu Religious and Charitable Endowments Act as early as 1963 in O.A.No.54 of 1963 for a scheme to be formulated for the administration of the temple. The appellant's father therein figured as first respondent. The temple, as per the scheme, was to be administered by a Committee of 5 trustees appointed by the appropriate authority and by an Executive Officer to be appointed by the authority. The first appellant's father and the second appellant's father were respondents in the said application, along with one Kumaravel Nadar and Ratna Nadar, who also claimed themselves as hereditary trustees. It was contended that the said temple was a private property. The appellants' father Ponnumuthu Nadar and Chelliah Nadar filed an application under Section 63(b) of the H.R. & C.E. Act, 1959, to declare the them as hereditary trustees of the temple. They contended that the suit properties were purchased by them and that the temple is situated in their property and hence, they alone were entitled to perform the festival. The said contention of the petitioner's father was, however, rejected and it was held that the temple was administered by elected representatives from the Hindu Nadars community of the said village and the first appellant's father and the second appellant's father had no right to represent as trustees of the temple. Admittedly, the said order was taken on appeal in A.P.No.47 of 1967. By order dated 27.6.1970, the Commissioner of H.R. & C.E. rejected the said appeal. Thus the fact remains that as early as 1967, the temple was held to be a public temple and the stand of the petitioners therein who are the present appellants' fathers, claiming themselves as hereditary trustees, was rejected.
6. As against this order, a suit was filed in O.S.No.37 of 1971 on the file of the Sub Judge, Nagercoil, by the first appellant's father and the second appellant's father against the Deputy Commissioner and the respondents herein. The appellants' fathers sought for a decree that the temple constituted a private Trust and that they were the hereditary trustees. A perusal of the judgment made therein shows the issues raised, which are as follows:
1. Whether the suit temple constitutes a private trust?
2. Whether the suit is bad for non-joinder of parties?
3. Whether the founder of the temple was the plaintiff's ancestor?
4. Whether the well is exclusively used by the plaintiff's family?
5. Whether the trustees are the hereditary trustees?
6. Whether the item No.2 S.No.12333 is a temple property?
7. Whether the order in A.P.47/67 of the Commissioner, H.R. & C.E., Madras liable to be set aside?
7. It is a matter of record that the suit ended in a compromise between the rival private parties and the same was recorded. It is also a matter of record that the suit filed against the order of the H.R. & C.E. Commissioner in A.P.No.47 of 1967 was dismissed, thereby the said order in A.P.No.47 of 1967, passed by the Commissioner, H.R. & C.E., holding the temple as a public temple and that the claim of the plaintiffs as hereditary trustees as between the rival parties stood confirmed. Leaving that aside, learned counsel appearing for the appellants, however, pointed out to the compromise entered into between the private parties to the exclusion of the statutory authority, namely, the Commissioner, H.R. & C.E., the terms of which are as under: 1. There shall be seven Trustees to manager and
2. of the seven Trustees six shall be from the each family of the plaintiffs and defendants 1, 2, 7, 8 and 9 agreed that they shall be hereditory;
3. There shall be Trustee from the side on the defendants 3, 4, 5 and 10 and other permanent villagers of Eswathanga shall be either hariditory or by election.
4. The appeals pending in the court of the Commissioner N.R. & C.E. R.P. 53 of 1974 address and other cases will be withdrawn by the Applicant.
5. The parties shall bear their costs.
Pending this, there was once again an application at the instance of the first appellant's father and the second appellant's father under Section 63-B of the Hindu Religious and Charitable Endowments Act, 1959, wherein, the appellants once again sought for a declaration that they were the hereditary trustees of the temple. The said claim was once again rejected in O.A.No.23 of 1967 by order dated 10.5.1972, based on the earlier orders in O.A.No.54 of 1963 as well as A.P.No.47 of 1967. The said order dated 10.5.1972 was appealed against before the Commissioner in A.P.No.53 of 1974. The appeal was rejected under order dated 31.12.1975. There is also an annexure to the order passed on the self same date by the Commissioner, wherein, it was specifically pointed out that the temple is a public temple and the appellants' own document showed different number of trustees at different point of time and that there was no uniform number of trustees. Thus the claim by the first appellant's father and second appellant's father as hereditary trustees was rejected. It was also pointed out that the order of the Commissioner in the earlier round of litigation did not recognise hereditary trusteeship. In the circumstances, the Commissioner confirmed the order of the Deputy Commissioner. Admittedly, that order was not appealed against and this order was passed subsequent to the judgment in O.S.No.37 of 1971 dated 30.4.1975.
8. It is a matter of fact that the Subordinate Judge, Nagercoil, recorded the fact that the appellant's father, as plaintiff, admitted that the temple events were administered by the H.R. & C.E. Department and the plaintiffs gave up their stand that the suit temple was not a public religious institution. This was also recorded so even in I.A.No.412 of 1975. Thus the fact remains that the temple is recognised and there is no dispute and it is admitted so, as a public temple. The only contention thus taken by the appellants herein is that pursuant to the compromise decree entered into between the appellants and the private parties, they were recognised as hereditary trustees and the appeal orders of the Commissioner would not be of any consequence.
9. Thus as per the compromise entered into between the rival private parties, the trustees were to be treated as hereditary trustees, even though they were not recognised so by the H.R. & C.E. Department and that the order of the Commissioner remained undisturbed, right from the first order of the Commissioner. The appellants state that even though the facts may be so, right from the date of the decree, the trustees have been functioning as hereditary trustees and that the Department had not taken any steps to disturb their status as hereditary trustees. It is a matter of record that in the meantime, difference arose between the rival group, resulting in a series of criminal O.Ps. before this Court and further suits thereon. In the face of the rival claim between the parties and the suits filed thereon, one of which has come up before this Court as by way of a Second Appeal before this Court, proceedings were taken by the Deputy Commissioner to appoint the Executive Officer of the Muppandhal Kizhaku Arulmigu Isakkiamman Thirukoil as the fit person of Arulmighu Bathrakaliamman Temple.
10. Considering the welfare and the need to manage the affairs of the temple, till such time a non-hereditary trustee is appointed, as per Section 23 of 1959 as amended under Section 39 of 1996, proceedings were issued under order dated 18.01.2006, appointing the Executive Officer of the Muppandhal Kizhaku Arulmigu Isakkiamman Thirukoil as the fit person of Arulmighu Bathrakaliamman Temple. Aggrieved by this, P.Harikrishnan, the person who claims himself as the Managing Trustee, filed W.P.No.1273 of 2006, seeking a Writ of Certiorari to quash the order of the first respondent dated 18.01.2006. At the same time, yet another writ petition was filed by the rival group in W.P.No.8496 of 2008 by one Kumaresan, seeking a Writ of Mandamus to direct the first respondent, namely, the Assistant Commissioner, H.R. & C.E., Nagercoil, Kanyakumari District, to take over the administration of the temple.
11. By a common order dated 29.2.2008, learned single Judge rejected the writ petition filed for a Writ of Certiorari in W.P.No.1273 of 2006 and allowed W.P.No.8496 of 2008. This led to the filing of W.A.(MD) Nos.614 and 710 of 2008 before this Court. Pending consideration of the writ appeals, interim orders were passed on 17.11.2009 as regards the conduct of the festival during the third week of November, 2009, directing the writ petitioner to conduct the festival under the direct supervision of the fit person of the temple. In the said order, it was also pointed out that the fit person shall alone be competent to collect all the contributions received for the festival and shall account for the same and that he was also entitled to spend the same for the festival and that the said arrangement was made only for the year 2009.
12. The order of the learned single Judge pointed out that the petitioner's father suffered the decree in the civil Court which held that the temple is a public temple and not denominational or owned by any group of families. This Court further pointed out that the compromise entered into between the rival groups would not bind the H.R. & C.E. Department and the suit filed by the petitioner's father along with others regarding the declaration of a sub-temple also would not go to the benefit of the petitioner seeking a declaration that he is the hereditary trustee of the temple. In the absence of any order by the Department recognising the rights of the petitioner as a hereditary trustee, the order passed by the respondent could not be interfered with.
13. Learned counsel appearing for the petitioner/appellants herein placed heavy reliance on the compromise decree and pointed out that once the parties had entered into a compromise, the order passed by the Commissioner is not of any avail. In the circumstances, the question of the H.R. & C.E. Department de- recognising the petitioner as a hereditary trustee does not arise. In any event, before passing an order appointing a fit person, there should have been a notice issued to the petitioner in order to comply with the principles of natural justice. Referring to the definition of hereditary trustee as given in Sub Section (11) of Section 6 of the H.R. & C.E. Act, learned counsel pointed out that when the appellants had discharged their function as hereditary trustees for nearly 30 years undisturbed by the Department, there could be no adverse order passed, without hearing the petitioner. Pointing out to the suit filed earlier in O.S.No.37 of 1971 on the file of the Sub Judge, Nagercoil as a statutory suit for a declaration as against the order passed by the Commissioner, he submitted that after the compromise decree entered into between the parties agreeing to withdraw the appeals, there existed no dispute as regards the status of the petitioner as a hereditary trustee. In the aforesaid factual position, even though there had not been any formal order, with the status of the petitioner as hereditary trustee recognised by the Department at least in practice, notice should have been given to the petitioner before passing any adverse order. In any event, there is no provision under the H.R. & C.E. Act to take over the administration of the temple. Consequently, placing reliance on the decisions reported in (1981) 2 MLJ 77 (Subramania Pillai Vs. Trustees, Temple Group), (1971) I MLJ 422 (Deputy Commissioner, H.R. & C.E. Board Vs. Sidhdhivinayaga Mudaliar), 2004-2-L.W. 695 (Commissioner, H.R. & C.E. Vs. Senthamarai Kannan (died) and others), 2007 SAR (Civil) 571 (Thimmappa Rai Vs. Ramanna Rai and others), 2007-1-L.W. 72 (N.Sivasubramanian Vs. The Government of Tamil Nadu), (1997) II MLJ 331 (Devaki Vs. The Hindu Religious and Charitable Endowments Department), 1995- 2-L.W. 213 (K.Ekambaram and another Vs. Commissioner, HR & CE of Administration Department etc.), (1970) 2 MLJ 599 (Nagarajan Vs. Commissioner, H.R. & C.E. (Admn.), AIR 1985 Mad 341 (Commissioner, H.R. & C.E. (Admn.) Department Vs. K.Jothiramalingam), (1964) 1 MLJ 230 (Muthirala Pillai Vs. Thyagarajaswami Pillai) and AIR 1991 SC 1117 (S.C. and Weaker Section Welfare Association (Regd.) Vs. State of Karnataka), learned counsel appearing for the petitioner contends that the impugned order suffers a serious illegality. He further qualified this contention by contending that the jurisdiction of the Commissioner under Section 47 lies only to find out whether there existed an office of a hereditary trusteeship or not and there could be no enquiry at all to find out whether a particular person could be a hereditary trustee or not. In the context of the said decisions, the respondent went beyond the jurisdiction to pass an order appointing the fit person, which had resulted in an illegality.
14. Countering the said submission, learned counsel appearing for the contesting respondents pointed out to the date of the order made in A.P.No.53 of 1974 viz., 31.12.1975, passed by the Commissioner, H.R. & C.E. and the similar order passed in O.A.No.23 of 1967 dated 10.5.1972, that when the compromise decree could not have any relevance at all to the order passed by the Commissioner in respect of which the suit filed had already been dismissed and further when the compromise, if at all had any validity, was also not acted upon, there is no gainsaying for the petitioner to contend that he is nevertheless the hereditary trustee to be recognised as such, in terms of the provisions of the H.R. & C.E. Act. Taking us through the judgment delivered in O.S.No.37 of 1971 on the file of the Subordinate Judge, Nagercoil, learned counsel pointed out to the finding of fact that the temple is a public temple and there is no such thing as a hereditary trustee. With the orders thus confirmed and in favour of the Commissioner, it is no longer open to the petitioner to contend that he is the hereditary trustee or is there any necessity for any notice to be issued to the petitioner. Referring to the various decisions relied on by the learned counsel appearing for the petitioner, learned counsel appearing for the contesting respondents pointed out that none of those decisions would be of any assistance to the petitioner, nor are they relevant to the case herein, since the status of the petitioner as a hereditary trustee was never a recognised one. In the background of the said facts in the respective cases, the petitioner/appellants cannot maintain the present writ appeals.
15. As regards the legal contention taken that the Commissioner has no jurisdiction to decide who shall be the hereditary trustee, learned counsel submits that when the question herein was whether at all there was any hereditary trustee, no fault could be found in the proceedings of the Commissioner, appointing the fit person.
16. Heard learned counsel appearing for both sides and perused the material placed on record.
17. As already pointed out in the preceding paragraphs, the order passed in O.A.No.23 of 1967 by the Deputy Commissioner of H.R. & C.E. Department dated 10.5.1972 is a second round of litigation at the instance of the petitioner's father and it is not denied by the petitioner that the order passed by the Deputy Commissioner in O.A.No.23 of 1967 dated 10.5.1972 and the order passed by the Commissioner in A.P.No.53 of 1974 dated 31.12.1975, are not challenged in a manner known to law. Thus the suit filed before the Sub Court was as regards the order passed in the first round of litigation, relating to the status of the parties as hereditary trustees of the temple. Leaving that aside, the compromise decree is not one binding on the H.R. & C.E. Commissioner. The judgment delivered on 30.4.1975 in O.S.No.37 of 1971 cannot be accepted as one bringing in a change to the order passed by the Commissioner as regards the status of trusteeship in respect of a public temple. Thus the statutory order passed by the Commissioner and the Deputy Commissioner on the status of the temple as a public temple and the management of its affairs by an elected body of the trustees had attained finality and beyond this order, there could be no trusteeship claim over the public temple from any of the parties including the appellants. Consequently, the order passed in O.A.No.23 of 1967 dated 10.5.1972 and the orders passed in A.P.No.53 of 1974 dated 31.12.1975 of even date reiterating the earlier orders as regards the character of the temple as a public temple and the status of the parties herein as not being recognised as hereditary trustees are final and are binding on the parties. Even though learned counsel appearing for the appellants/ petitioners does not dispute this position, as rightly pointed out by the contesting respondents, in the affidavit filed before this Court, the petitioner herein claimed himself to be a hereditary trustee and the temple as a private temple. The proceedings taken before this Court in the Criminal O.Ps., is not concerned about the question as to whether the petitioners therein could be recognised in their status as hereditary trustees in the context of the orders passed by the Commissioner. It is also a matter of record that the suit filed in O.S.No.62 of 1988 on the file of the Sub Court, Nagercoil, by the present writ appellants seeking a declaration as regards Bathrakaliamman Temple as private or public, was subsequently withdrawn. In the background of the said facts, we do not find any justifiable ground to accept the plea of the appellants herein that the order passed by the respondents is in violation of the statutory prescription, particularly with reference to the violation of the principles of natural justice in not granting the opportunity to state their case. The decisions which are cited before this Court were also cited before the learned single Judge, who considered them, particularly in paragraph 20, and held that these decisions do not, in any manner, advance the cause of the petitioner.
18. A reading of paragraph 20 of the order of the learned single Judge shows that after considering the facts as stated in the preceding paragraphs as regards the finality attached to orders of the Commissioner and that of the civil Court, learned single Judge held that the temple is a public temple and not denominational or owned by any group of families and there are no hereditary trustees as claimed by the appellants. Learned single Judge also held that there is no order by the Department in any of the previous proceedings, recognising the right of the writ petitioner as a hereditary trustee. In the background of this, we agree with the view of the learned single Judge rejecting the writ petitions. The fact that the Commissioner had not disturbed the petitioner from his functioning, does not, per se, justify the claim of the appellants/petitioners as hereditary trustees to bestow a better right. The contention of the appellants that the compromise decree also recognised the community at large as entitled to a form of trusteeship and they being recognised as hereditary trustees on a larger aspect under the definition of hereditary trustee under the H.R. & C.E. Act also does not merit any acceptance, for the reason that the contention raised read through the affidavit filed before this Court that the temple is a private temple and the trustees were hereditary trustees, a concept which does not go well with the contention as recorded in the compromise entered into between the parties. It is also a matter of record that a person who claims himself as the representative of a community, had never filed any affidavit or acted in a representative capacity to contend that his stay in the post of trusteeship is on the basis of an election as a representative of the community at large, that he would be entitled to be called as a representative trustee. The averments in the affidavit and suit proceedings belie the claim of the appellants that on a larger concept of hereditary trusteeship, the appellants be recognised as hereditary trustees of the temple.
19. Learned counsel appearing for the appellants also made reference to the decision reported in AIR 1991 SC 1117 (S.C. and Weaker Section Welfare Association (Regd.) Vs. State of Karnataka) as to the compliance of natural justice by affording an opportunity to contest the notice issued. It is no doubt true that wherever any proceeding taken is to adversely affect the rights of a person, principles of natural justice require that the person to be affected by such proceedings has to be given an opportunity before passing an adverse order. This would be so even in the absence of statutory provisions on this aspect. But given the fact that the appellants were never recognised as trustees and that when there is no order in support of the appellants' plea, in the face of the finality attached to the orders of the Commissioner, we do not find any sustainable ground to accept the contentions of the petitioner that the impugned notice would vitiate the proceedings on the ground of non- compliance of the principles of natural justice. There is hardly any material on which the appellants could lay their hands to legalise their status as hereditary trustees.
20. 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.
21. 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 H.R. & C.E. 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.
22. In the result, the writ appeals and the writ petition stand dismissed. As the writ appeals stand dismissed, M.P.(MD) Nos.1 of 2011 and 1 of 2012 in W.A.(MD) No.614 of 2008 for impleading the parties, stand dismissed. M.P.(MD) No.2 of 2012 in M.P.(MD) No.1 of 2008 in W.A.(MD) No.614 of 2008 for vacating the interim stay, stands closed. M.P.(MD) Nos.1 of 2008 and 2 of 2010 in W.A.(MD) No.710 of 2008 stand dismissed. M.P.(MD) No.2 of 2011 and M.P.(MD) No.1 of 2012 in W.P.No.13865 of 2011 stand closed. No costs.