PRAYER: Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of Writ of Certiorari, to call for the records pertaining to the order of the 1st respondent made in Se Mu Na Ka No.47497/07/A1 dated 05.06.2010 and quash the same as illegal, void, arbitrary and ultravires.
PRAYER: Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of Writ of Mandamus, to direct the respondents 1 to 3 herein to implement the order of the Joint Commissioner, HR & CE, Madras made in Na.Ka.No.6365/2008/A1 dated 30.10.2008 by break opening the 4 rooms kept under lock in Arulmighu Kadumabadi Chinnamman Thirukovil, Saidapet West, Chennai 600 015 and handover the articles jointly to the petitioner and the 3rd respondent herein.
PRAYER: Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of Writ of Certiorarified Mandamus, to call for the records of the 1st respondent in proceedings bearing RC No.57228/2009/D2 dated 28.03.2012 and quash the same and direct the 1st respondent to pass final orders on the report submitted by the 2nd respondent in proceedings No.Se.Mu.Na.Ka.No.7322/2006/A1 dated 20.02.2012 in respect of holding elections to the post of Managing Trustee for Arulmigu Kadumbadi Chinnamman Temple, Saidapet, Chennai 15 within such time as may be fixed.
PRAYER: Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of Writ of Certiorarified Mandamus, to call for the records of the 1st respondent in proceedings bearing RC No.57228/09/D2 dated 28.03.2012 and quash the same in so far as against the petitioners as illegal, void and ultravires and direct the 1st respondent order to for the joint custody of the articles account books, valuables records of the temple with the custody of the Managing Heriditary Trustee and the fit person of the temple.
COMMON ORDER
1. These nine writ petitions arose out of the various orders passed by the Hindu Religious and Charitable Endowments Department, in respect of Arulmighu Kadumbadi Chinnamman Temple, Saidapet West, Chennai 600 015. In some orders, the respective petitioners were suspended after conducting enquiry from being Trustees of the Temple. In some cases, challenge is to the order of the Commissioner, Hindu Religious and Charitable Endowments Department, directing the Fit person to conduct the affairs of the temple, in association with the Managing Trustees of the temple at the relevant time. In some cases, challenge is to the order of the Commissioner, in writing letters to the Bank to operate the Bank account jointly along with the Fit person.
2. The following tabular column will show the list of cases along with the petitioners and the relief claimed and interim orders passed:
Name of the Petitioner/s
Relief claimed
Order passed by
Whether any interim order granted
W.P.No.12770/2010
C.B.Subramaniya Chettiar
C.P.Prabakaran Chettiar A.Gajapathy
A.Ravi
A.Venkatesan
Suspended under Section 53(4) dated05.06.2010
Commissioner, HR & CE Department
Interim stay until further orders
W.P.No.12939/2010
A.Kasthuri
Suspended under Section 53(4) dated05.06.2010
Commissioner, HR & CE Department
Interim stay to cooperate with Fit Person
W.P.No.14930/2010
A.Selvakumar
A.Baskaran
E.Shanthi
S.Sumathy
K.Mahalakshmi
Kasturi Bai
Ramani
Suspended under Section 53(4) dated05.06.2010
Commissioner, HR & CE Department
Stay petition dismissed as not pressed on19.04.2012
W.P.No.25899/2010
C.B.Subramaniya Chettiar
To implement the order of the Joint Commissioner, HR & CE Department to break open 4 rooms kept under lock and hand over the articles for joint custody of the pettioner and 3rd respondent (A.Baskaran)
Notice in the direction application
W.P.No.29541/2011
1.C.B.Subramaniya Chettiar
2.C.P.Prabakaran Chettiar
To set aside the order dated 04.08.2011 intimation to Board for joint custody
(letter to IOB to jointly operate the bank account)
Admitted on 21.12.2011
W.P.No.29542/2011
1.C.B.Subramaniya Chettiar
2.C.P.Prabakaran Chettiar
To set aside the order dated 04.08.2011
(letter to IOB to jointly operate the bank account)
Admitted on 21.12.2011
W.P.No.29543/2011
1.C.B.Subramaniya Chettiar
2.C.P.Prabakaran Chettiar
To set aside the order dated 02.08.2011
(Letter to CCC Bank)
Admitted on 21.12.2011
W.P.No.10746/2012
A.Baskaran
To set aside the order dated 28.03.2012
Admitted on 19.04.2012. Stay petition dismissed
W.P.No.11171/2012
C.B.Subramaniya Chettiyar
C.P.Prabakaran
A.Gajapathy
A.Ravi
A.Venkatesan
To set aside the order dated 28.03.2012
Not yet admitted
3. It is seen from the records that Arulmighu Kadumbadi Chinnamman Temple is a listed Temple, published under Section 46(ii) of the Hindu Religious and Charitable Endowments Act, 1951 (shortly "the HR&CE Act"). The Temple falls under the administrative jurisdiction of the Joint Commissioner of Hindu Religious and Charitable Endowments Department, Chennai. The office of the trusteeship of the temple was declared as a Hereditary Trusteeship, by the Hindu Religious and Charitable Endowments Board, in O.A.No.254/1947 vide order dated 12.12.1947. The family members are the Hereditary Trustees and there was no dispute amongst them till the year 2005.
4. During the year 2005, the Trustees passed a resolution at a special meeting held on 27.06.2005 that one A.Baskaran, petitioner in W.P.No.10746 of 2012 was elected as Managing Trustee for a period of two years from 01.07.2005. Under the amendment made to Section 48 of the HR&CE Act, the term of the office of the trusteeship was enhanced from two years to three years. But the said extension of tenure was not applicable to the Temple, which is manned by the Hereditary Trustees. The said A.Baskaran misconstrued the provision and took advantage of the amendment and requested the Department to extend his term of Managing Trusteeship for one year.
5. Mr.A.Baskaran, petitioner in W.P.No.10746 of 2012 filed a revision petition before the Commissioner of the Hindu Religious and Charitable Endowments Department, being R.P.No.55/2007 and the same was dismissed by the Commissioner on 05.10.2007. As against the said order, he filed writ petition in W.P.No.34119 of 2007 before this Court. He also filed a revision petition before the Government under Section 114 of the HR & CE Act. This Court disposed of the writ petition with a direction to the Secretary to the Government, to pass final orders, on the revision petition. After detailed enquiry, the revision petition filed under Section 114 of the HR & CE Act was disposed of by the State Government with a direction to the Hereditary Trustee to file objection if any, before the Commissioner of Hindu Religious and Charitable Endowments Department, with regard to the election conducted on 17.10.2007 and directed the Commissioner to dispose of the same, after considering all objections and records. A petition was also filed under Section 23 of the HR & CE Act and the same was dismissed by the Commissioner on 31.05.2008.
6. As against the said order, A.Baskaran and 7 others, including A.Kasthuri, petitioner in W.P.No.12939 of 2010, A.Selvakumar, petitioner in W.P.No.14930 of 2010 filed a revision petition under Section 114 of the HR & CE Act to the Government with a prayer to conduct fresh election for the post of Managing Trustee. That revision petition was also dismissed by the Government on 17.02.2010.
7. Since there was no co-ordination between the Hereditary Trustees of the Temple and there was infighting among the Trustees to become the Managing Trustees and also there were unnecessary litigation and also the fact that the charge was not handed over to the Managing Trustee, the temple administration got ruined and there was a complete chaos in the administration of the temple. But the Hereditary Trustees formed two groups. One were the legal heirs of Arumugam and the other lead by C.B.Subramaniya Chettiar, who is the petitioner in almost all the writ petitions.
8. Considering all these issues, the Commissioner suspended all the Hereditary Trustees, who were jointly responsible for all the lapses, pending enquiry into the charges, vide order dated 05.06.2010. The said order is under challenge in W.P.No.12770 of 2010 filed by C.B.Subramaniya Chettiar, in W.P.No.12939 of 2010 filed by A.Kasthuri and in W.P.No.14930 of 2010 filed by A.Selvakumar.
9. In the suspension orders, there were as many as 11 charges levelled against the Hereditary Trustees, including not fixing of fair rent for the immovable properties belonging to the temple and non-filing of execution petition for evicting the tenants, in terms of the decree obtained and not collecting rent from the tenants of the temple and not maintaining proper accounts with reference to the performance of rituals and income derived from the Hundial.
10. In W.P.No.12770 of 2010, the suspension order was challenged by C.B.Subramaniya Chettiar and 7 others. Subsequently, the names of C.Anusuya, S.Vijayalakshmi and C.Sridhar were deleted and there were only 4 persons in the said writ petition along with C.B.Subramaniya Chettiar. An interim stay was granted initially, subject to the condition that the writ petitioners should cooperate with the Fit person in the management of the temple and in the other two writ petitions, namely W.P.No.12939 and 14930 of 2010 also, similar orders were passed.
11. Even after the interim orders were passed, the Hereditary Trustees who have obtained interim orders were not allowing the Fit persons to function as directed by this Court and in view of the interim stay granted, the Department claimed that they could not proceed with the enquiry. It is also claimed that the Fit person has moved this Court for punishing the Trustees for committing the contempt of the orders passed by this Court inasmuch as no cooperation was forthcoming from the Trustees, despite an order being issued in their name.
12. After taking advantage of the interim orders, the other writ petitions came to be filed, one after other, as noted in the tabular column set out above.
13. In the light of the above facts, the following questions arose for consideration by this Court.
i)Whether the suspension issued against the Trustees were legally justified?
ii)Whether before issuing suspension, the pre-requisite of Section 53(4) of the Act will have to be followed?
iii)Whether the term of the office of the Trustees can be restricted to only two years?
iv)Whether election should be ordered as the term of office of A.Baskaran has come to an end, even as early as in the year 2009?
v)If election is held as per the practice of the administration of the temple, whether the suspended Trustees can be allowed to participate in the election?
vi)Whether the family of Late.C.B.Chandrasekaran Chettiar could be allowed to represent in the said election?
14. Taking the last contention first, it is admitted by Mr.D.Rajagopal, learned counsel that the wife and daughter of Late.C.B.Chandrasekaran Chettiar have already filed an application claiming trusteeship, before the authorities and unless and until that is determined, the question of this Court in giving directions to the Department to include them in the trusteeship, will not arise. As and when the department passes orders, they will be entitled to get the benefit of the same and in the absence of any claim before this Court by the aggrieved parties that issue cannot be considered herein.
15. With respect to the second question as to whether before issuing suspension, the pre-requisite of Section 53 of the HR & CE Act should be followed, it is necessary to extract Section 53 of the HR & CE Act, which reads as follows:
"53.Power to suspend, remove or dismiss trustees.-
(1)In this Section, the expression, "appropriate authority" shall, unless the context otherwise requires, means -
(a)in respect of any trustee of any religious institution included in the list published under Clause (iii) of Section 46,
(b)in respect of any trustee of any religious institution included in the list published under Clause (ii) of Section 46;
(c)in respect of any trustee of any religious institution included in the list published under Clause (i) of Section 46 and in respect of any hereditary trustee of any religious institution not included in the list published under the said Section 46,
(d)in respect of any non-hereditary trustee of any religious institution not included in the list published under Section 46.
[(1-A) Notwithstanding anything contained in sub-section (1) for the purpose of this Section, the Government shall also be the appropriate authority in respect of any trustee of any religious institution.]
(2)The appropriate authority may suspend, remove or dismiss any trustee, if he-
(a)ceases to profess the Hindu religion; or
(b)fails to discharge the duties and perform the functions of a trustee in accordance with the provisions of this Act or the Rules made thereunder; or
(c)disobeys the lawful orders issued under the provisions of this Act or the Rules made thereunder by the Government the Commissioner, or the Assistant Commissioner; or
(d)continuously neglects his duty or commits any malfeasance, misfeasance or breach of trust, in respect of the trust; or
(e)misappropriates or deals improperly with the properties of the institution; or
(f)is of unsound mind or is suffering from other mental defect or infirmity which would render him unfit to perform the functions and discharge the duties of a trustee or is suffering from leprosy or other loathsome disease; or
(g)is sentenced by a Criminal Court for an offence involving moral delinquency, such sentence not having been reversed or the offence pardoned; or
(h)is an undischarged insolvent; or
(i)is interested in a subsisting lease of any property of, or contract made with or any work being done for, the religious institutions or is in arrears of any kind due by him to the religious institution; or
(j)acts adversely to the interests of the institution; or
(jj)wilfully fails to pay the contribution payable under Sub-section (1) of Section 92 or the further sum payable under Sub-section (2) of Section 92 within the time allowed by or under Clause (b) of Sub-section (2) of Section 94; or
(k)absents himself from three consecutive meetings of the trustees.
(l)in the case of a Chairman of the Board of Trustees or a Managing or Executive trustee, refuses, or delays to, or does not, hand over to his successor.
(3)When it is proposed to take action under Sub-section (2), the appropriate authority shall frame charges against the trustee concerned and give him an opportunity of meeting such charges, of testing the evidence adduced against him and of adducing evidence in his favour; and the order of suspension, removal or dismissal shall state the charges framed against the trustee, his explanation and the finding on each charge with reasons therefor.
(4)Pending the disposal of the charges framed against the trustee, the appropriate authority may place the trustee under suspension and appoint a fit-person to discharge the duties and perform the functions of the trustee.
(5)A trustee who is aggrieved by an order passed under Sub-section (2) may within one month from the date of the receipt by him of the order of suspension, removal or dismissal, appeal against the order-
(i)where the order has been passed by the Commissioner to the Government;
(ii)where the order has been passed by the Joint Commissioner or Deputy Commissioner, to the Commissioner; and
(iii)where the order has been passed by the Assistant Commissioner to the Joint / Deputy Commissioner.
[(5-A) A Trustee who is aggrieved by an order passed by the Government under Sub-section (2) may, within ninety days from the date of the receipt of such order by him, appeal against such order to the High Court.
(6)A hereditary Trustee aggrieved by an order passed by the Commissioner or the Government under Sub-section (5) may, within ninety days from the date of receipt of such order by him, institute a suit in the Court against such order."
16. Excepting Mr.D.Rajagopal, learned counsel, no other person argued that there must be a prior hearing under Section 53(3) of the HR & CE Act.
17. Section 53(2) of the HR & CE Act also uses the term that the appropriate authority may suspend, remove or dismiss any Trustee. The word suspension found in the said section need not only be a suspension, but also a punishment, which question did not arise in the present case. It is only a suspension pending charges as set out in the counter affidavit filed by the Commissioner, Hindu Religious and Charitable Endowments Department, Chennai. Even otherwise, this Court vide judgment in M.C.KARTHIKEYAN VS. THE JOINT COMMISSIONER, HINDU RELIGIOUS AND CHARITABLE ENDOWMENT (ADMN) DEPARTMENT, COIMBATORE AND ANOTHER [1998 (1) MLJ 365] after referring to the earlier judgment of this Court in K.MANIKANDA MUDALIAR VS. THE DEPUTY COMMISSIONER, H.R. & C.E. DEPARTMENT, SALEM (W.P.No.12810 of 1990) quoted the same with approval. In this regard, it is necessary to refer to para 7 of the judgment in M.C.KARTHIKEYAN's case (cited supra) which reads as follows:
"7.Identical claim had been considered by S.Ramalingam, J in K.Manikanda Mudaliar v. The Deputy Commissioner, H.R. & C.E. Department, Salem, W.P.No.12810 of 1990. In the said case, the learned Judge has considered the scope of Sects.53 and 54 of the Act and has held thus:
"4.On a consideration of these rival submissions, it is seen that while Sec.53(2) deals with the power of the appropriate authority to impose punishment on a trustee any order of suspension as a substantive punishment is imposed, it will disable the hereditary trustee to discharge his duties by reason of that disability by way of suspension and hence there is a duty cast upon the prescribed authority to consider the claims of the next line of succession to succeed to the office of that disabled hereditary trustee to perform the functions of the trustee until his disability ceases.
5.In a case where pending enquiry into certain charges if a trustee is placed under suspension, then, that ad interim suspension is governed by the provisions of Sec.53(4) of the Act which enables the competent authority to appoint a fit person to discharge the duties of that trustee who is under ad interim suspension.
6.Here is a case where the petitioner who was a hereditary trustee was placed under ad interim suspension pending enquiry into certain charges and therefore Sec.53(4) alone would be attracted and not Sec.53(2) of the Act. Under Sec.53(4) of the Act, a fit person could be appointed pending enquiry into the charges framed against the hereditary trustee and the claim of the next in line of succession need not be considered at that stage. Hence the writ petition is dismissed."
18. Further, the term suspension used in the Section 53(2) is acceptable for both meaning, namely, suspension pending enquiry as well as suspension as a measure of punishment. A similar rule found in FR 54 came to be considered by the Honourable Supreme Court in R.P.KAPUR VS. UNION OF INDIA [AIR 1964 SC 787]. Subsequently, the matter was also referred to by the Supreme Court in its judgment in BALVANTRAI RATILAL PATEL VS. STATE OF MAHARASHTRA [AIR 1968 SC 800]. In the said judgment, after referring to R.P.Kapur's case (cited supra) as well as FR 54, in page No.805, it was observed as follows:
"It was held by the majority decision of this Court that Fundamental Rule 53 contemplates all kinds of suspension, whether it is a penalty or as an interim measure pending departmental enquiry or criminal proceeding. It is manifest that Rules 151 and 152 of the Bombay Civil Service Rules are couched in a similar language to that of Fundamental Rules 53 and 54 and it must be held for this reason also that Rules 151 and 152 of the Bombay Civil Service Rules comprise in their scope both kinds of suspension, whether it is a penalty or as an interim measure pending an enquiry into the conduct of the Government servant concerned or criminal proceeding against him."
19. Therefore, the question of hearing the parties, before ordering suspension, pending enquiry, will not arise, as it will defeat the very purpose of suspension and the invocation of Section 53(3) is misconceived and the same will apply only when an enquiry is ordered based upon the charges. Therefore, the arguments addressed by Mr.D.Rajagopal, learned counsel, is rejected.
20. The general attack against the suspension, as argued by K.S.Viswanathan, learned counsel relating to the petitioner A.Baskaran, A.Kasthuri and A.Selvakumar on the ground that the charges were cumulatively levelled against all the Board of Directors, whereas if at all the charges were specified against a specific Director and hence the suspension must be quashed cannot be accepted.
21. Section 53(5) of the HR & CE Act provides for an appeal, in case the penalty is imposed in terms of Section 53(2)of the Act, whereas in the present case, in the counter affidavit, the Commissioner has clearly stated that the charges levelled were due to the lapses committed by all the Trustees and therefore, nobody can plead ignorance about the non-discharge of their duties. Considering the fact that the charges are very serious and unless the petitioners were heard, the question of going into the charges, at this stage, will not arise.
22. In this context, the petitioners also referred to the proceedings dated 20.02.2012 passed by the Joint Commissioner, Hindu Religious and Charitable Endowments Department, Chennai, wherein he had stated that enquiry has already been completed and report has been sent to the Commissioner and it is only the Commissioner to pass orders and the Trustees were bound to wait for the same. It is also stated that since the temple is managed by Hereditary Trustees, the Joint Commissioner has no power to pass orders.
23. In the light of the above, this Court is not inclined to interfere with the order of suspension made against the Trustees and hence, W.P.Nos.12770, 12939 and 14930 of 2010 stand dismissed. Since the suspension is upheld, the question of challenging the appointment of Fit person fails. The interim orders passed by this Court that the Trustees should cooperate with the Fit person also was made only on the ground that there was a stay of the suspension order. Since the main writ petitions are dismissed, the interim orders do not have independent legs to stand. Therefore, the Fit person is at liberty to discharge the duties, in the administration of the temple, in the place of the Trustees pending election.
24. The petitioners have filed other writ petitions in W.P.Nos. 25899 of 2010 and 29541 to 29543 of 2011 challenging the orders of the Joint Commissioner, with respect to the letters sent to the Banks regarding joint custody and joint operation also has to fail and hence, all those writ petitions namely, W.P.Nos.25899 of 2010 and 29541 to 29543 of 2011 stand dismissed.
25. W.P.No.10746 of 2012 is filed by A.Baskaran and W.P.No.11171 of 2012 is filed by C.B.Subramaniya Chettiar challenging the very same order of the Commissioner, Hindu Religious and Charitable Endowments Department, Chennai, dated 28.03.2012. By the said order, the Commissioner had directed the Fit person to take immediate action to break open the lock of the four safety rooms, which were kept under the custody of A.Baskaran, in the presence of the Assistant Commissioner , HR & CE Department, Inspector of the HR & CE Department, Revenue Authorities and the Hereditary Trustees of the temple including A.Baskaran, with sufficient police protection. It is further directed that they must take inventories of all the receptacles and valuables, including accounts and records kept in the four safety rooms. The entire process was directed to be completed within ten days. It is now admitted before this Court that taking inventories have been started curiously.
26.While challenging the order of taking possession of the properties and making inventories, Mr.A.Baskaran demanded election to the post of Managing Trustee in W.P.No.10746 of 2012 and C.B.Subramaniya Chettiar demanded joint custody of the articles, for which inventories have been taken, in W.P.No.11171 of 2012.
27.This Court is not inclined to interfere with the proceedings dated 28.03.2012 passed by the Commissioner, HR & CE Department and the Fit person shall be given the custody of the articles, as per the inventories taken. Since C.B.Subramaniya Chettiar's suspension has been upheld and his claim was largely based upon the earlier interim order obtained in W.P.No.12770 of 2010 and that writ petition having been dismissed, he has right for joint custody and hence, W.P.No.11171 of 2012 stands dismissed.
28. The writ petition in W.P.No.10746 of 2012 filed by A.Baskaran to the extent of challenging the order of taking possession of the properties will also stand dismissed, because his term as Managing Trustee has come to an end in the year 2009 itself and he himself seeking election to the post of Managing Trustee.
29. With respect to the second portion of the prayer in W.P.No.10746 of 2012, since it is a Temple administered by the Hereditary Trustees belonging to the four or five families, in the interest of the temple and in the interest of the family, which established the temple, the Commissioner, Hindu Religious and Charitable Endowments Department, Chennai, is hereby directed to conduct election to the post of Managing Trustee, as per the existing practice. It is made clear that before ordering election, the Commissioner must complete the process of enquiry, since already a report of the Joint Commissioner is available with him. Therefore, the following directions are issued to the Commissioner, Hindu Religious and Charitable Endowments Department, Chennai:
(1)The Commissioner, Hindu Religious and Charitable Endowments Department, Chennai shall complete the enquiry and pass final orders, on the basis of the charges framed against the Trustees and communicate the same to all the Trustees, within a period of four weeks from the date of receipt of a copy of this order.
(2)After the orders are pronounced in the matter of suspension, the Commissioner should notify the election for the post of Managing Trustee, as per the existing practice, within a period of eight weeks thereafter and entrust the management of the temple to the family Trustees.
(3)It is an infighting between the members of the family, which has resulted in huge litigation before this Court and before the Department, without serving any purpose. Therefore, the Trustees are hereby directed to cooperate in the well maintaining of the temple, without any infighting and if they are aggrieved about the existing practice of election of Trustees, they can make appropriate application, for framing a Scheme for managing the temple, so that, there could have rotational management. In respect of the claim of the family of Late.C.B.Chandrasekaran Chettiar, they should await the decision of the authority in which the application is pending.
30. In the result, the writ petitions are dismissed with the above directions. No costs. Consequently, connected miscellaneous petitions are closed.