Sri Mahalakshmi Temple Vs. the Commissioner, H.R. and C.E. (Admn.) Department and Another - Court Judgment

Excerpt:
trusts and societies - appointment - sections 6 (20), 45 (1), 47, 49, 63 and 69 of tamil nadu hindu religious and charitable endowments act, 1959 - petition filed to quash appointment of respondent no. 2 - petitioner alleged appointment invalid as no notice served to him - whether appointment invalid - respondent no. 1 exercised power under section 45 (1) on relevant consideration - petitioner cannot challenge exercise of such power as being outside purview of section 45 (1) - respondent cannot appoint executive officer where there is hereditary trustee - in such circumstances respondent has to serve notice to hereditary trustee - petitioner failed to prove himself as hereditary trustee - appointment valid. - - 51321/92-l1 dated 16-7-1992 appointing the 2nd respondent as the executive officer of the sri mahalakshmi temple, madras-90, for better administration of this temple. according to the writ petitioner, he is the founder of the temple and the city civil court, madras, has given a finding in his favour, which clearly establishes his position in the temple ever since its inception. placing strong reliance on the division bench judgment of this court, mr. strong reliance was placed on the division bench decision of this court reported in commissioner, h. it is clearly mentioned in that order that the public at large have donated about rs. having regard to the above facts, i am of the firm view, that it would be perfectly within the powers of the 1st respondent to appoint an executive officer for the temple in question and hence, i reject the contention of the writ petitioner raised on this ground. in fact, the matter was considered by the department and it was felt necessary that an executive officer should be appointed to the temple in question in the interest of the temple as well as the public. in the impugned order it is stated that since large number of pilgrims used to visit the temple and that there were reasons to believe that the income of the temple from various sources are not properly accounted for and after the disposal of the cases in the civil courts, there was an attempt not to account for the income of the temple from various sources, it was felt necessary that the appointment of an executive officer was in the interest of the institution as well as the devotees. it is also seen from the records that the petitioner, though undertook to submit the audited accounts by a registered auditor to the board on 10th april of every year, has miserably failed to comply with the said order of this court in c. 853 of 1981. when onte the petitioner has failed to comply with a solemn undertaking given before this court in a. 1 am of the view, that person like the petitioner, who has violated and disobeyed the orders of this court, is not entitled to any indulgence at the hands of this court. as stated above, he has failed before all the statutory authorities constituted under the act and before the city civil courtand this court. 22. it is also seen from the order impugned in the writ petition that the 1st respondent has specifically stated in that order that the power has been exercised for the better and proper administration of the temple in question, which in my view, is a relevant consideration. in the instant case, the petitioner has miserably failed to prove that he is the hereditary trustee and hence he is entitled to notice preceded by the appointment of the executive officer. 23. strong reliance was placed by mr. 45(1) of the act, initiated proceedings for the appointment of an executive officer on the ground that such appointment will pave the way for the better administration of the temple.order1. the petitioner has filed the above writ petition in his capacity as the founder managing trustee of sri mahalakshmi temple, madras-90, for the following relief : to issue a writ of certiorari or any other appropriate writ, order or direction, calling for the records of the 1st respondent relating to the appointment of the 2nd respondent as executive bfficer of sri mahalakshmi temple, besant nagar, madras-90, issued in rc. no. 51321/92-l1 dated 16-7-1992 and quash the same. 2. according to the petitioner, he is the founder managing trustee of sri mahalakshmi temple. the subject matter of challenge in this writ petition is the order of the 1st respondent in proceedings no. 51321/92-l1 dated 16-7-1992 appointing the 2nd respondent as the executive officer of the sri mahalakshmi temple, madras-90, for better administration of this temple. the order was passed by the 1st respondent in exercise of the powers vested in him under s. 45(1) of the tamil nadu hindu religious and charitable endowments act, 1959 (act 22 of 1959), hereinafter referred to as the act. the powers and duties of the executive officer and the non-hereditary trustee have already been set out in detail in the annexure to the order impugned in the writ petition. according to the writ petitioner, he is the founder of the temple and the city civil court, madras, has given a finding in his favour, which clearly establishes his position in the temple ever since its inception. even though the courts have held that sri mahalakshmi temple is a public religious institution coming under the provisions of the act, that cannot be a reason for the appointment of an executive officer for the temple without notice and that the present appointment of an executive officer for the temple practically replace the petitioner from his position as founder-cum-managing trustee of the temple. in the circumstances, it is stated that the petitioner should get a notice before an order is passedunder s. 45(1) of the act. it is further stated that the dismissal of l.p.i.a. no. 115 of 1992 by a division bench of this court has not given any special power to the 1st respondent to proceed with the appointment of an executive officer for the institution in question and hence, the impugned order of the 1st respondent is ex facie illegal and is liable to be set aside. 3. the above writ petition was admitted by this court on 22-7-1992. along with the writ petition, w.m.p. no. 14296 of 1992 was filed to stay the operation of the impugned order of the 1st respondent dated 16-7-1992 in appointing the 2nd respondent as the executive officer of the temple in question. s. govindaswamy, j., was pleased to grant interim stay for two weeks on 22-7-1992. to vacate the same, the 2nd respondent has filed w.m.p. no. 14925 of 1992. the 2nd respondent has also filed a detailed counter in this case. likewise, the 1st respondent has also filed a detailed counter-affidavit denying the allegations contained in the affidavit filed in support of the writ petition. 4. by consent of all parties, the main writ petition itself was taken up for final hearing and i have heard mr. g. subramaniam, learned senior advocate on behalf of the petitioner, mr. r. krishnamurthi, learned senior advocate on behalf of the 2nd respondent and mr. p, m. bhaskaran, learned govt. advocte for the 1st respondent. 5. mr. g. subrarnaniam, learned senior advocate for the petitioner, at the time of hearing has raised the following only contention. the 1st respondent has no authority to appoint an executive officer for the temple in question without any notice to the person in management. according to him, it has been admitted by all the authorities below and the city civil court and this court, that the petitioner is the founder of the temple. placing strong reliance on the division bench judgment of this court, mr. g. subramaniam further contends, that an enquiry has to be held after giving notice to the person in management before the appointment of an executive officer under s. 45(1) of the act to any temple and since no such notice has beengiven to the petitioner by the 1st respondent, the impugned proceedings of the 1st respondent appointing an executive officer violates all principles of natural justice. strong reliance was placed on the division bench decision of this court reported in commissioner, h.r.&c.e. (admn.) department v. k. jothiramalingam, : air1985mad341 (g. ramanujam and v. ratnam, jj.) 6. per contra, mr. r. krishnamurthi, learned senior advocate, on behalf of the 2nd respondent submits that the writ petition is misconceived and devoid of merit, and as admitted by the petitioner himself, the temple in question has been declared to be a public temple and a religious institution within the meaning of the act. since the claim of the petitioner that the said temple is a private temple has been rejected by the authorities constituted under the act, and the statutory suit filed by the petitioner in o.s. no. 3510 of 1981 on the file of the city civil court, madras, was dismissed upholding the findings of the authorities under the act, and when the appeal filed by the petitioner in a.s. no. 853 of 1981 on the file of this court was dismissed confirming the order of the authorities below and the further appeal in l.p.a. no. 115 of 1992 was also dismissed by a division bench of this court finally declaring the temple in question to be a public temple and a religious institution to which all the provisions of the act would apply, the contention of the petitioner has absolutely no merit and the same has to be rejected in view of the various proceedings and the pronouncements of the authorities constituted under the act and the legal pronouncements of the city civil court, madras and also this court. 7. mr. p. m. bhaskaran, learned govt. advocate for the 1st respondent, has also supported the contentions raised by mr. r. krishnamurthi on behalf of the 2nd respondent. he also reiterated the contentions raised by the 1st respondent in his counter-affidavit. 8. i have carefully considered the rival submissions made by the respective senior counsel. the only claim put forward in the present writ petition is that the appointment in question is invalid in law as it had notbeen preceded by a notice, which, according to the petitioner, is mandatory. the petitioner has also relied upon a judgment of this court in this regard. i am of the view that the aforesaid claim of the petitioner is not tenable in law and on facts. as referred to already, the only issue projected by the petitioner all through was that the temple in question is a private one, to which the provisions of the act would not apply. that issue, as stated already, had been concluded against the petitioner and in favour of the department. at no point of time had the petitioner projected a claim that the temple is administered by a hereditary trustee. as a matter of fact, the said claim has also not been averred in the affidavit filed in support of the present writ petition. let me now advert to the findings already given by the authorities constituted under the act, the city civil court and also this court in the various proceedings referred to above and see whether in view of such categorical and unassailable findings, the petitioner will be entitled to any notice as claimed by him. 9. the first order in this context to be referred to is the order passed by the deputy commissioner (judicial), h. r. & c. e. (admn.) department, madras-34, in o. a. no. 60 of 1977 dated 5-1-1979. that is an application under s. 63(a) of the act filed by m. r. srinivasa varadachariar. it is clearly mentioned in that order that the public at large have donated about rs. 11 lakhs for the construction of the temple and that sri maha-lakshmi trust as such was found to be a public trust. according to the deputy commissioner, ex. a-1 filed before him is the deed of declaration of trust, which itself confirms the above fact. in paragraph 2 of ex. a-1, the following is stated categorically : 'whereas the founder herein has decided to declare and execute a public charitable and religious trust in the name and style of shri mahalakshmi trust.'admittedly, public have contributed for the construction of the said temple and that by itself would, in my view, establish that the temple in question is a public temple under the provisions of the act. the deputy commissioner has found that the temple inquestion is of public character as defined under s. 6(20) of the act, and has been used for public religious worship and that the same has been dedicated to and for the benefit of and use as of right by hindus as a public religious worship as laid down in the several rulings referred to in the order. therefore, the deputy commissioner has dismissed the petition filed by the writ petitioner under s. 63(a) of the act seeking a declaration that the temple does not fall under the purview of the act. 10. an appeal was preferred in a. p. no. 32 of 1979 against the abovesaid order of the deputy commissioner, before the commissioner, h. r. & c. e. (admn.) department, madras-34. the commissioner has also dismissed the appeal preferred under s. 69(i) of ihe act and confirmed the finding of the deputy commissioner that the institution known as sri mahalakshmi temple, besant nagar, madras-90, is a religious institution within the meaning of s. 6(20) of the act. 11. the writ petitioner thereafter filed a suit in 0. s. no. 5 of 1980 on the file of the sub-court, chengalpattu, which was later transferred to the city civil court, madras, and numbered as o. s. no. 3510 of 1981. the suit was disposed of on merits by t. n. singaravelu, j., as he then was, by his judgment dated 17-8-1981. while referring to the evidence of the writ petitioner m. r. srinivasa varadachariar as p. w. 1 in the suit, the learned judge says that the petitioner hails from the village of mukkoor and has no other occupation or avocation and that he has taken up this occupation as the means of the livelihood from 1942 onwards and that he is not an income-tax assessee and he never submitted returns to the income-tax department. therefore, the learned judge has found prima facie that the petitioner is not in a position to contribute any amount towards the temple and in any event, there is no acceptable evidence showing his financial contribution to the temple. while referring to his chief-examination, the learned judge states that the petitioner has admitted that from the sale proceeds of the ashtalakshmipictures, he discharged the bank loan of rs. 40,000/-. it was also elicited from him that sri mahalakshmi trust, which came into existence in 1972, had no funds of its own and that he purchased the site for the temple only from out of the donations from the public and through the sale of the ashtalakshmi pictures to the devotees. the other admissions elicited from p.w. l, the petitioner herein, is that the temple had been constructed according to agama sastras and it is a vaishhava temple of vadagalai cult following pancharathra agamam and that the temple was built only for the worship of the public. 12. the above answers given by the writ petitioner as p.w. 1 in the civil suit speak for themselves and no further comments, in my view, are necessary. these admissions further bear out that the temple is dedicated for public religious worship and for the benefit of the hindu community. p.w. 1 was the solitary witness to speak to his case and none of the other trustees or other witnesses has chosen to support his claim. d. w. 5, g. k. sundaram, managing director of lakshmi mills group, coimbatore, who contributed major donation, has given evidence also denying the claim of p.w. 1, the petitioner herein. it is useful to extract the findings of the learned judge in paragraph 53 of his judgment : 'now, the action of the trustee in filing this suit is nothing but a retrograde step which is likely to hurt the sentiments and feelings of the large number of worshipping public, especially those who have made large donations in cash and kind to this deity. in other words, this is a luxurious suit launched by the de facto trustee, which is neither beneficial to the public nor to the trust, of which p.w. 1 claimed to be the founder.'thus, on a deep consideration of law and facts, the learned judge dismissed the suit. 13. the fourth proceeding is the appeal filed by the writ petitioner in a. s. no. 853 of 1981 and c.m.p. no. 2812 of 1992. e. j. bellie, j., on an elaborate consideration of the facts and law, has confirmed the judgment and decree of the principal judge, city civilcourt, madras, and dismissed the appeal and c. m. p. no. 2812 of 1992, which was filed to amend the cause title. 14. the matter was taken up on further appeal by way of l. p. a. no. 115 of 1992, which was dismissed by p. s. misra and padmini jesudurai, jj., at the time of admission itself. it is relevant to reproduce the judgment of the division bench in this context : 'heard. the finding with regard to the character of a deity and the temple based on such evidence that was adduced by the parties, in our opinion, are unassailable. faced with this situation, learned counsel for the appellant has argued that taking shelter under the impugned judgment, some of the officers of the hindu religious endowments department of the slate have interfered with their right of administration of the properties of the temple in question. since there has not been any such controversy either in the suit or before the learned single judge, who had disposed of the appeal, we do not think it will be possible for the appellant to show anything in this regard at the stage of the appeal invoking clause 15 of the letters patent of this court. if there is any such right of administration and if there is any interference in the said right by any of the authorities of the respondent-endowment board, it shall be open to the appellant to raise the dispute in accordance with law. any further dispute, however, shall not be allowed with respect to the character of the temple in question. since we do not find any merit in this appeal, it is dismissed.'thus, it is seen from the legal proceedings referred to above, that the character of the temple in question has been finally adjudicated upon and decided. 15. the temple in question is admittedly of a recent origin and the office of the trusteeship of the temple cannot be claimed to be hereditary. in fact, the petitioner has not claimed the said office to be hereditary. that apart, even assuming that the petitioner is to make a claim in this regard, until the same is finally established in a manner known to law,it cannot be assumed that the temple is under the management of hereditary trustee. the findings rendered by the authorities constituted under the act, the city civil court and this court go to show that the temple in question had been built by raising funds from the public. having regard to the above facts, i am of the firm view, that it would be perfectly within the powers of the 1st respondent to appoint an executive officer for the temple in question and hence, i reject the contention of the writ petitioner raised on this ground. 16. in fact, the department has waited patiently for the litigation initiated by the writ petitioner under s. 63(a) of the act reaching its finality and then only the matter was considered by the department and the impugned order appointing an executive officer came to be passed. in fact, the matter was considered by the department and it was felt necessary that an executive officer should be appointed to the temple in question in the interest of the temple as well as the public. in the impugned order it is stated that since large number of pilgrims used to visit the temple and that there were reasons to believe that the income of the temple from various sources are not properly accounted for and after the disposal of the cases in the civil courts, there was an attempt not to account for the income of the temple from various sources, it was felt necessary that the appointment of an executive officer was in the interest of the institution as well as the devotees. therefore, the 1st respondent, by the impugned proceedings, appointed an executive officer to the petitioner-temple. it is also seen from the records that the petitioner, though undertook to submit the audited accounts by a registered auditor to the board on 10th april of every year, has miserably failed to comply with the said order of this court in c. m. p. no. 13806 of 1981 in a. s. no. 853 of 1981. when onte the petitioner has failed to comply with a solemn undertaking given before this court in a. s. no. 853 of 1981, on which ground he was allowed to manage the trust properties, the department is justified in raising a presumption that the income might be misused for the personal ends of the petitioner and certain other interested persons. in fact,this is one of the reasons which compelled the 1st respondent to appoint an executive officer and this reason has also been explicitly stated in paragraph 6(v) and (vi) of the impugned order. further, mr. g. subra-maniam, learned senior advocate for the petitioner, at the time of hearing, produced the account books said to have been maintained and audited by the registered auditor, and requested this court to verify the correctness of the accounts, etc. i refused to look into the same since it has not been submitted to the board by 10th april of every year. 1 am of the view, that person like the petitioner, who has violated and disobeyed the orders of this court, is not entitled to any indulgence at the hands of this court. the department, in my view, is right in appointing an executive officer to manage the temple in the interest of the temple in question and the public at large, who have contributed sizable amount for the construction of the temple and for its maintenance. 17. mr. g. subramaniam, learned senior advocate for the petitioner, at the time of hearing the writ petition and the writ miscellaneous petitions, while referring to the letter given by the petitioner on 20-7-1992 to the 2nd respondent, submitted that the letter was written by the 2nd respondent himself and the petitioner was forced to sign the same. according to him, in this letter it has been mentioned that the petitioner has commenced to hand over charge of the temple properties to the executive officer, that the charge has not been fully handed over and that the completion of handing over charge will be done on 22-7-1992 without any hesitation. before 22-7-1992, the writ petition was moved in this court on 21-7-1992 and interim stay was obtained on 21-7-1992 itself. hence, according to the learned senior counsel for the petitioner, charge was not fully handed over to the 2nd respondent. i may straightway reject this contention as wholly baseless. this argument has been invented only at the time of hearing. there is absolutely no whisper about this argument in the affidavit filed in support of the main writ petition. the same affidavit has been filed in the stay petition also. nowhere in the affidavit it is stated thatthe petitioner was compelled or forced to hand over management and charge of the temple to the 2nd respondent and that the petitioner was threatened and coerced to hand over charge. 18. it is true that the petitioner has signed in english in the letter dated 20-7-1992 written by the 2nd respondent, in english. it is useful to reproduce this letter. 'from sri mukkoor srinivasa varadachariar, person in management, a/m. mahalakshmi temple, besant nagar, madras - 90 to the executive officer, a/m parthasarathy temple, madras -- 5. i am to state that to-day i have commenced to hand over charge of a/m mahalakshmi temple, besant nagar, madras-90 to the executive officer of a/m parthasarathy temple, triplicane. i shall complete the charge on wednesday the 22nd day of july without any hesitation. this is for your information. for sri mahalakshmi trust, (sd.) m. r. srinivasa varadachariar, founder & managing trustee, 20-7-1992. witness : m. s. srinivasa raghavan, 20-7-1992, 33, mahalakshmi colony, besant nagar, madras -- 90.'this letter has been witnessed by the petitioner's son m. s. srinivasa raghavan residing at no. 33, mahalakshmi colony, besant nagar, madras-90. he has also put the date as 20-7-1992. the petitioner has only stated in paragraph 7 of the affidavit filed in support of the writ petition that the 2nd respondentarmed with the impugned order has come to his temple and making attempt to take over the management ignoring his right in the temple as its founder. in the circumstances, the petitioner has prayed this court to stay the operation of the impugned order of the 1st respondent in appointing the 2nd respondent as its executive officer pending disposal of the writ petition. this court also, on the basis of the allegation contained in paragraph 7 of the affidavit filed in support of the writ petition, has granted interim stay only for two weeks on 22-7-1992. but the fact remains otherwise. 19. the original letter and the other records pertaining to the take over of the temple on 20-7-1992 and 21-7-1992 have been produced before me for perusal. the petitioner having commenced to hand over charge on 20-7-1992 to the 2nd respondent without any protest or demur, has however, filed an affidavit before this court (sworn to on 21-7-1992 and filed in this court on the same date) with an entirely different version. hence i do not find any merit in the contention of mr. g. subramaniam that the process of handing over was only commenced and not completed. once possession is handed over voluntarily, the petitioner has no right to be in management of the temple and its properties any further even assuming that the petitioner was a person in management of the temple. hence, on the facts and circumstances of the case and on a perusal of the records produced before me, i hold that the 2nd respondent has commenced to take charge on 20-7-1992 and the petitioner had voluntarily handed over charge on the same date and the interim order, which was granted only for two weeks and expired by now, cannot continue. accordingly, i dismiss w. m. p. np. 14296 of 1992 and allow w. m. p. no. 14925 of 1992. 20. it is also seen from the records produced by the 2nd respondent that he has taken a list of items of properties and has also made arrangements for sale of archana tickets and prasadam tickets and tickets for other ceremonies in the temple. the hundials were sealed on 3-7-1992 and all the bhatachariars have given the list of articles entrusted tothem in their respective sub-shrines. the 2nd respondents has also made payment to third parties through cheque and the balance amount available in bank deposit is rs. 1,965/- as on 24-7-1992, the date of signing the affidavit. the 2nd respondent also reports that the daily collection from the institution is nearly rs. 2,000/-, which is apart from the collections through hundials, and on verifiction of the accounts, it is seen that the petitioner is keeping only a very small sum in the bank account. according to the 1st respondent, the temple is getting a sum of about rs. 2,000/- per day as on 24-7-1992 by way of sale of archana and prasadam tickets and after meeting the expenses, a sum of rs. 1,965/- was remitted to the bank on 21-7-1992 and, that therefore, one can reasonably apprehend that the minimum income of the temple would be about rs. 2 lakhs per month through the collection of hundials, sale of archana tickets and prasadam tickets, etc., the amount outstanding in the bank was also very negligible. 21. mr. g. subramaniam, learned senior counsel for the petitioner has also produced befor this court a true copy of the petition filed by the writ petitioner under s. 63(b) of the act before the deputy commissioner, h. r. & c. e. (admn.) department, madras-34, praying to enquire into the matter and declare that the petitioner is a person entitled to hold office as founder-cum-hereditary trustee of sri mahalakshmi temple, besant nagar, madras-90, controlled by sri maha-lakshmi trust, which has been registered under the societies registration act, within the meaning of ss. 6(11) and 63(b) of the act, and pass suitable orders. the said petition has been filed on 26-7-1992 i.e., after the judgment of this court in l. p. a. no. 115 of 1992 dated 9-7-1992 and after the admission of the present writ petition and grant of stay by this court on 22-7-1992. the said petition is still pending. unless and until the said petition filed under s.63(b) of the act is finally adjudicated upon by the board, the petitioner cannot raise any claim to be in management of the temple. as stated above, he has failed before all the statutory authorities constituted under the act and before the city civil courtand this court. this court has categorically held that institution in question is a religious institution within the meaning of s. 6(20) of the act. hence, the petitioner has absolutely no right to claim that he is entitled to a notice under s. 45(1) of the act before the appointment of an executive officer. 22. it is also seen from the order impugned in the writ petition that the 1st respondent has specifically stated in that order that the power has been exercised for the better and proper administration of the temple in question, which in my view, is a relevant consideration. in my view, the power under s. 45(1) of the act has been exercised by the 1st respondent only in accordance with the provisions of the act. since the 1st respondent has exercised his power under s.45(1) of the act only on relevant considerations, i am of the view, that the exercise of such power cannot be challenged by the petitioner as being outside the purview of s. 45 of the act. the only circumstance under which the 1st respondent cannot appoint an executive officer for a temple is where there is a hereditary trustee, in which case, the 1st respondent has to give notice of the proposed appointment and consider the objections of the hereditary trustee regarding such appointment. in the instant case, the petitioner has miserably failed to prove that he is the hereditary trustee and hence he is entitled to notice preceded by the appointment of the executive officer. 23. strong reliance was placed by mr. g. subramaniam, learned senior advocate for the petitioner on the decision of a division bench of this court reported in commissioner, h. r. & c. e. (admn.) department, madras v. k. jothiramalingam, : air1985mad341 to show that show cause notice against such appointment is essential under s. 45 of the act. that was a case of a hereditary trustee, having been so declared by the judgment of this court in a. s. no. 157 of 1961 dated 27-11-1963. according to the respondent in the above decision (k. jothiramalingam), he had been in his capacity as such hereditary trustee submitting budgets, dhittam, etc., as contemplated under theprovisions of the act and had been looking after the administration and management of the temple and maintaining its accounts, which has also been duly audited by the appropriate authorities under the act. while matter stood thus, proceedings were initiated by the assistant commissioner, h. r. & c. e. department, cuddalore, to associate non-hereditary trustees with the respondent under s. 49 read with s. 47(2) of the act on certain grounds and though the respondent submitted his objections, without affording any opportunity to him, the assistant commissioner called for applications for appointment of non-hereditary trustees, which led to the filing of r. p. no. 242 of 1974 by the respondent and his obtaining stay of the notification calling for applications for appointment of non-hereditry trustees. ignoring the order secured by the respondent, the assistant commissioner proceeded to appoint two non-hereditary trustees to be associated with the respondent and that led to the filing of another application r. p. no. 41 of 1975 before the commissioner, wherein also the respondent secured an order of stay. later, the order of appointment of non-hereditary trustees was set aside by the commissioner on the ground that the respondent was not given adequate opportunity to set out his objections. despite these proceedings, the commissioner, in the purported exercise of the powers vested in him under s.45(1) of the act, initiated proceedings for the appointment of an executive officer on the ground that such appointment will pave the way for the better administration of the temple. the writ petition filed by the respondent to quash the order of the commissioner was allowed on the ground that no opportunity was given to the respondent. the department filed writ appeal. the division bench held that the commissioner exercised his power under s. 45(1) of the act by straightway appointing an executive officer without issuing notice to the respondent therein and after giving him opportunity to show cause against such appointment. under those circumstances, the division bench held that the order of the commissioner deserves to be quashed and was rightly quashed by the earned singlejudge, and no case for interference with thatorder was made out and dismissed the writappeal with costs. in my view, the abovedecision will be of no assistance to the wri,tpetitioner herein, for, that decision wasrendered on the basis that the respondenttherein is a hereditary trustee. admittedly, therespondent therein is a hereditary trustee andthe department proceeded to appoint non-hereditary'trustees and executive officerwithout giving notice or opportunity or evenholding an enquiry as to the need for theappointment of such an executive officer :hence, the division bench was of the viewthat any appointment of an executive officeror a non-hereditary trustee should be preceded by the issue of a notice to the hereditarytrustee to show cause why an executiveofficer should not be appointed. they alsorefer to the decision in nagarajan v. commissioner, h. r. & c. e. (admn.) department : air1971mad295 ,which has considered the very questionarising in the writ appeal, wherein it has beenlaid down in no uncertain terms that notice isnecessary for a hereditary trustee before theappointment of a non-hereditary trusteeunder s. 45 of the act. hence, the decision in : air1985mad341 , is not applicable to the facts and circumstances of the present case, which is distinguishable on facts. 24. the next decision relied on by mr. g, subramaniam is an unreported judgment of a division bench of this court in w. p. no. 5474 of 1982, etc. batch dated 21-6-1983 (k.b.n. singh, c. j., and s. padmanabhan, j.). this judgment was cited for the proposition that the trustees who are functioning already should not be displaced during the pendency of the proceedings before the commissioner. this judgment is not applicable to the present case for more than one reason viz., (i) the writ petitioner was not appointed as trustee by any one including the department; (ii) he is only a self-styled trustee; and (iii) the question of allowing the petitioner to function does not arise. 25. mr. g. subramaniam next contended that the properties of the temple should be recovered from the petitioner by taking stepsunder the appropriate provisions of the act. in support of his contention he cited paragraph 10 in the decision reported in roopa-linga chettiar v. deputy commissioner, h. r. & c. e. department, madras, 97 law weekly 424, which is as follows:-- 'the question then for consideration is what shall be the date from which the non-hereditary trustees appointed under the act would hold office. in all such cases, there should be a procedure under which the new appointee who is appointed as a trustee of a religious institution acknowledges in writing that he has assumed charge of his office. in cases where persons appointed by h.r. & c.e. authorities themselves, are holding the office, it is expected that they should also acknowledge in writing that they had handed over charge and the newly appointed trustees should equally acknowledge in writing that they have taken charge of their office. there may however be cases where non-hereditary trustees are appointed and the hereditary trustees who are already holding the office may not be willing to hand over charge to the newly appointed trustees. in such situations, it is expected that the newly appointed trustees should acknowledge in writing to the authorities concerned that they have assumed charge of their office and thereafter taking appropriate proceedings as provided in the act for the recovery of the possession of the properties and records of the concerned institution. it is not clear from the counteraffi-davit whether such a procedure is being followed or not followed by the h.r. & c.e. department. in all the cases before us it is not disputed that a fit person appointed by the department itself was holding the office by the time when the petitioners were appointed as non-hereditary trustees. in such circumstances, there must be something in writing to show that the fit person who is in charge of the affairs of the religious institution handed over charge of his office to the newly appointed trustee and that the newly appointed trustee took over charge from the fit person. the date of such handing over charge and taking over charge would be the date from which normally the newly appointed trustee would commence to hold office and he shall beeligible to hold office under s. 47 for a period of three years from the date of assumption of office. we make it clear that in future as and when new trustees are appointed the authorities should have it recorded in writing that the newly appointed trustees have taken over charge from the persons already holding the office and the latter had handed over the charge. in cases where hereditary trustees in whose place or along with him the newly appointed trustees are appointed refuse to hand over charge, the newly appointed trustees should record that they have assumed office notwithstanding the refusal of the existing trustees to hand over charge and that they would be taking appropriate steps to recover possession of the properties of the institution. this is implicit in s. 47(3) itself where it provides that a trustee shall hold office for a term of three years.'this does not arise in the instant case since the petitioner herein has handed over charge without any protest. in view of this, the stay sought for, which had been granted on 22-7-1992, had become infructuous. the petitioner has suppressed the fact that the charge has been handed over by him and taken by the 2nd respondent on 20-7-1992. the 2nd respondent is functioning as executive officer with effect from 20-7-1992. 26. for the foregoing reasons, i dismiss the writ petition. however, there will be no order as to costs. 27. petition dismissed.

Judgment:
ORDER

1. The petitioner has filed the above writ petition in his capacity as the Founder Managing Trustee of Sri Mahalakshmi Temple, Madras-90, for the following relief :

To issue a writ of certiorari or any other appropriate writ, order or direction, calling for the records of the 1st respondent relating to the appointment of the 2nd respondent as Executive bfficer of Sri Mahalakshmi Temple, Besant Nagar, Madras-90, issued in Rc. No. 51321/92-L1 dated 16-7-1992 and quash the same.

2. According to the petitioner, he is the founder Managing Trustee of Sri Mahalakshmi Temple. The subject matter of challenge in this writ petition is the order of the 1st respondent in Proceedings No. 51321/92-L1 dated 16-7-1992 appointing the 2nd respondent as the Executive Officer of the Sri Mahalakshmi Temple, Madras-90, for better administration of this temple. The order was passed by the 1st respondent in exercise of the powers vested in him under S. 45(1) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (Act 22 of 1959), hereinafter referred to as the Act. The powers and duties of the Executive Officer and the non-hereditary trustee have already been set out in detail in the Annexure to the order impugned in the writ petition. According to the writ petitioner, he is the founder of the temple and the City Civil Court, Madras, has given a finding in his favour, which clearly establishes his position in the temple ever since its inception. Even though the Courts have held that Sri Mahalakshmi Temple is a public religious institution coming under the provisions of the Act, that cannot be a reason for the appointment of an Executive Officer for the temple without notice and that the present appointment of an Executive Officer for the temple practically replace the petitioner from his position as founder-cum-managing trustee of the temple. In the circumstances, it is stated that the petitioner should get a notice before an order is passedunder S. 45(1) of the Act. It is further stated that the dismissal of L.P.I.A. No. 115 of 1992 by a Division Bench of this Court has not given any special power to the 1st respondent to proceed with the appointment of an Executive Officer for the institution in question and hence, the impugned order of the 1st respondent is ex facie illegal and is liable to be set aside.

3. The above writ petition was admitted by this Court on 22-7-1992. Along with the writ petition, W.M.P. No. 14296 of 1992 was filed to stay the operation of the impugned order of the 1st respondent dated 16-7-1992 in appointing the 2nd respondent as the Executive Officer of the temple in question. S. Govindaswamy, J., was pleased to grant interim stay for two weeks on 22-7-1992. To vacate the same, the 2nd respondent has filed W.M.P. No. 14925 of 1992. The 2nd respondent has also filed a detailed counter in this case. Likewise, the 1st respondent has also filed a detailed counter-affidavit denying the allegations contained in the affidavit filed in support of the writ petition.

4. By consent of all parties, the main writ petition itself was taken up for final hearing and I have heard Mr. G. Subramaniam, learned Senior Advocate on behalf of the petitioner, Mr. R. Krishnamurthi, learned Senior Advocate on behalf of the 2nd respondent and Mr. P, M. Bhaskaran, learned Govt. Advocte for the 1st respondent.

5. Mr. G. Subrarnaniam, learned Senior Advocate for the petitioner, at the time of hearing has raised the following only contention. The 1st respondent has no authority to appoint an Executive Officer for the temple in question without any notice to the person in management. According to him, it has been admitted by all the authorities below and the City Civil Court and this Court, that the petitioner is the founder of the temple. Placing strong reliance on the Division Bench judgment of this Court, Mr. G. Subramaniam further contends, that an enquiry has to be held after giving notice to the person in management before the appointment of an Executive Officer under S. 45(1) of the Act to any temple and since no such notice has beengiven to the petitioner by the 1st respondent, the impugned proceedings of the 1st respondent appointing an Executive Officer violates all principles of natural justice. Strong reliance was placed on the Division Bench decision of this Court reported in Commissioner, H.R.&C.E. (Admn.) Department v. K. Jothiramalingam, : AIR1985Mad341 (G. Ramanujam and V. Ratnam, JJ.)

6. Per contra, Mr. R. Krishnamurthi, learned Senior Advocate, on behalf of the 2nd respondent submits that the writ petition is misconceived and devoid of merit, and as admitted by the petitioner himself, the temple in question has been declared to be a public temple and a religious institution within the meaning of the Act. Since the claim of the petitioner that the said temple is a private temple has been rejected by the authorities constituted under the Act, and the statutory suit filed by the petitioner in O.S. No. 3510 of 1981 on the file of the City Civil Court, Madras, was dismissed upholding the findings of the authorities under the Act, and when the appeal filed by the petitioner in A.S. No. 853 of 1981 on the file of this Court was dismissed confirming the order of the authorities below and the further appeal in L.P.A. No. 115 of 1992 was also dismissed by a Division Bench of this Court finally declaring the temple in question to be a public temple and a religious institution to which all the provisions of the Act would apply, the contention of the petitioner has absolutely no merit and the same has to be rejected in view of the various proceedings and the pronouncements of the authorities constituted under the Act and the legal pronouncements of the City Civil Court, Madras and also this Court.

7. Mr. P. M. Bhaskaran, learned Govt. Advocate for the 1st respondent, has also supported the contentions raised by Mr. R. Krishnamurthi on behalf of the 2nd respondent. He also reiterated the contentions raised by the 1st respondent in his counter-affidavit.

8. I have carefully considered the rival submissions made by the respective senior counsel. The only claim put forward in the present writ petition is that the appointment in question is invalid in law as it had notbeen preceded by a notice, which, according to the petitioner, is mandatory. The petitioner has also relied upon a judgment of this Court in this regard. I am of the view that the aforesaid claim of the petitioner is not tenable in law and on facts. As referred to already, the only issue projected by the petitioner all through was that the temple in question is a private one, to which the provisions of the Act would not apply. That issue, as stated already, had been concluded against the petitioner and in favour of the department. At no point of time had the petitioner projected a claim that the temple is administered by a hereditary trustee. As a matter of fact, the said claim has also not been averred in the affidavit filed in support of the present writ petition. Let me now advert to the findings already given by the authorities constituted under the Act, the City Civil Court and also this Court in the various proceedings referred to above and see whether in view of such categorical and unassailable findings, the petitioner will be entitled to any notice as claimed by him.

9. The first order in this context to be referred to is the order passed by the Deputy Commissioner (Judicial), H. R. & C. E. (Admn.) Department, Madras-34, in O. A. No. 60 of 1977 dated 5-1-1979. That is an application under S. 63(a) of the Act filed by M. R. Srinivasa Varadachariar. It is clearly mentioned in that order that the public at large have donated about Rs. 11 lakhs for the construction of the temple and that Sri Maha-lakshmi Trust as such was found to be a public trust. According to the Deputy Commissioner, Ex. A-1 filed before him is the deed of declaration of trust, which itself confirms the above fact. In paragraph 2 of Ex. A-1, the following is stated categorically :

'Whereas the founder herein has decided to declare and execute a public charitable and religious trust in the name and style of Shri Mahalakshmi Trust.'

Admittedly, public have contributed for the construction of the said temple and that by itself would, in my view, establish that the temple in question is a public temple under the provisions of the Act. The Deputy Commissioner has found that the temple inquestion is of public character as defined under S. 6(20) of the Act, and has been used for public religious worship and that the same has been dedicated to and for the benefit of and use as of right by Hindus as a public religious worship as laid down in the several rulings referred to in the order. Therefore, the Deputy Commissioner has dismissed the petition filed by the writ petitioner under S. 63(a) of the Act seeking a declaration that the temple does not fall under the purview of the Act.

10. An appeal was preferred in A. P. No. 32 of 1979 against the abovesaid order of the Deputy Commissioner, before the Commissioner, H. R. & C. E. (Admn.) Department, Madras-34. The Commissioner has also dismissed the appeal preferred under S. 69(i) of ihe Act and confirmed the finding of the Deputy Commissioner that the institution known as Sri Mahalakshmi Temple, Besant Nagar, Madras-90, is a religious institution within the meaning of S. 6(20) of the Act.

11. The writ petitioner thereafter filed a suit in 0. S. No. 5 of 1980 on the file of the sub-Court, Chengalpattu, which was later transferred to the City Civil Court, Madras, and numbered as O. S. No. 3510 of 1981. The suit was disposed of on merits by T. N. Singaravelu, J., as he then was, by his judgment dated 17-8-1981. While referring to the evidence of the writ petitioner M. R. Srinivasa Varadachariar as P. W. 1 in the suit, the learned Judge says that the petitioner hails from the village of Mukkoor and has no other occupation or avocation and that he has taken up this occupation as the means of the livelihood from 1942 onwards and that he is not an income-tax assessee and he never submitted returns to the Income-tax Department. Therefore, the learned Judge has found prima facie that the petitioner is not in a position to contribute any amount towards the temple and in any event, there is no acceptable evidence showing his financial contribution to the temple. While referring to his chief-examination, the learned Judge states that the petitioner has admitted that from the sale proceeds of the AshtalakshmiPictures, he discharged the bank loan of Rs. 40,000/-. It was also elicited from him that Sri Mahalakshmi Trust, which came into existence in 1972, had no funds of its own and that he purchased the site for the temple only from out of the donations from the public and through the sale of the Ashtalakshmi Pictures to the devotees. The other admissions elicited from P.W. l, the petitioner herein, is that the temple had been constructed according to Agama Sastras and it is a Vaishhava temple of Vadagalai cult following Pancharathra Agamam and that the temple was built only for the worship of the public.

12. The above answers given by the writ petitioner as P.W. 1 in the civil suit speak for themselves and no further comments, in my view, are necessary. These admissions further bear out that the temple is dedicated for public religious worship and for the benefit of the Hindu community. P.W. 1 was the solitary witness to speak to his case and none of the other trustees or other witnesses has chosen to support his claim. D. W. 5, G. K. Sundaram, Managing Director of Lakshmi Mills Group, Coimbatore, who contributed major donation, has given evidence also denying the claim of P.W. 1, the petitioner herein. It is useful to extract the findings of the learned Judge in paragraph 53 of his judgment :

'Now, the action of the Trustee in filing this suit is nothing but a retrograde step which is likely to hurt the sentiments and feelings of the large number of worshipping public, especially those who have made large donations in cash and kind to this Deity. In other words, this is a luxurious suit launched by the de facto trustee, which is neither beneficial to the public nor to the Trust, of which P.W. 1 claimed to be the founder.'

Thus, on a deep consideration of law and facts, the learned Judge dismissed the suit.

13. The fourth proceeding is the appeal filed by the writ petitioner in A. S. No. 853 of 1981 and C.M.P. No. 2812 of 1992. E. J. Bellie, J., on an elaborate consideration of the facts and law, has confirmed the judgment and decree of the Principal Judge, City CivilCourt, Madras, and dismissed the appeal and C. M. P. No. 2812 of 1992, which was filed to amend the cause title.

14. The matter was taken up on further appeal by way of L. P. A. No. 115 of 1992, which was dismissed by P. S. Misra and Padmini Jesudurai, JJ., at the time of admission itself. It is relevant to reproduce the judgment of the Division Bench in this context :

'Heard. The finding with regard to the character of a deity and the temple based on such evidence that was adduced by the parties, in our opinion, are unassailable. Faced with this situation, learned counsel for the appellant has argued that taking shelter under the impugned judgment, some of the officers of the Hindu Religious Endowments Department of the Slate have interfered with their right of administration of the properties of the temple in question. Since there has not been any such controversy either in the suit or before the learned single Judge, who had disposed of the appeal, we do not think it will be possible for the appellant to show anything in this regard at the stage of the appeal invoking Clause 15 of the Letters Patent of this Court. If there is any such right of administration and if there is any interference in the said right by any of the authorities of the respondent-endowment Board, it shall be open to the appellant to raise the dispute in accordance with law. Any further dispute, however, shall not be allowed with respect to the character of the temple in question. Since we do not find any merit in this appeal, it is dismissed.'

Thus, it is seen from the legal proceedings referred to above, that the character of the temple in question has been finally adjudicated upon and decided.

15. The temple in question is admittedly of a recent origin and the office of the trusteeship of the temple cannot be claimed to be hereditary. In fact, the petitioner has not claimed the said office to be hereditary. That apart, even assuming that the petitioner is to make a claim in this regard, until the same is finally established in a manner known to law,it cannot be assumed that the temple is under the management of hereditary trustee. The findings rendered by the authorities constituted under the Act, the City Civil Court and this Court go to show that the temple in question had been built by raising funds from the public. Having regard to the above facts, I am of the firm view, that it would be perfectly within the powers of the 1st respondent to appoint an Executive Officer for the temple in question and hence, I reject the contention of the writ petitioner raised on this ground.

16. In fact, the Department has waited patiently for the litigation initiated by the writ petitioner under S. 63(a) of the Act reaching its finality and then only the matter was considered by the Department and the impugned order appointing an Executive Officer came to be passed. In fact, the matter was considered by the Department and it was felt necessary that an Executive Officer should be appointed to the temple in question in the interest of the temple as well as the public. In the impugned order it is stated that since large number of pilgrims used to visit the temple and that there were reasons to believe that the income of the temple from various sources are not properly accounted for and after the disposal of the cases in the civil Courts, there was an attempt not to account for the income of the temple from various sources, it was felt necessary that the appointment of an Executive Officer was in the interest of the institution as well as the devotees. Therefore, the 1st respondent, by the impugned proceedings, appointed an Executive Officer to the petitioner-temple. It is also seen from the records that the petitioner, though undertook to submit the audited accounts by a registered auditor to the Board on 10th April of every year, Has miserably failed to comply with the said order of this Court in C. M. P. No. 13806 of 1981 in A. S. No. 853 of 1981. When onte the petitioner has failed to comply with a solemn undertaking given before this Court in A. S. No. 853 of 1981, on which ground he was allowed to manage the trust properties, the Department is justified in raising a presumption that the income might be misused for the personal ends of the petitioner and certain other interested persons. In fact,this is one of the reasons which compelled the 1st respondent to appoint an Executive Officer and this reason has also been explicitly stated in paragraph 6(v) and (vi) of the impugned order. Further, Mr. G. Subra-maniam, learned Senior Advocate for the petitioner, at the time of hearing, produced the account books said to have been maintained and audited by the registered auditor, and requested this Court to verify the correctness of the accounts, etc. I refused to look into the same since it has not been submitted to the Board by 10th April of every year. 1 am of the view, that person like the petitioner, who has violated and disobeyed the orders of this Court, is not entitled to any indulgence at the hands of this Court. The Department, in my view, is right in appointing an Executive Officer to manage the temple in the interest of the temple in question and the public at large, who have contributed sizable amount for the construction of the temple and for its maintenance.

17. Mr. G. Subramaniam, learned Senior Advocate for the petitioner, at the time of hearing the Writ Petition and the Writ Miscellaneous Petitions, while referring to the letter given by the petitioner on 20-7-1992 to the 2nd respondent, submitted that the letter was written by the 2nd respondent himself and the petitioner was forced to sign the same. According to him, in this letter it has been mentioned that the petitioner has commenced to hand over charge of the temple properties to the Executive Officer, that the charge has not been fully handed over and that the completion of handing over charge will be done on 22-7-1992 without any hesitation. Before 22-7-1992, the writ petition was moved in this Court on 21-7-1992 and interim stay was obtained on 21-7-1992 itself. Hence, according to the learned Senior Counsel for the petitioner, charge was not fully handed over to the 2nd respondent. I may straightway reject this contention as wholly baseless. This argument has been invented only at the time of hearing. There is absolutely no whisper about this argument in the affidavit filed in support of the main writ petition. The same affidavit has been filed in the stay petition also. Nowhere in the affidavit it is stated thatthe petitioner was compelled or forced to hand over management and charge of the temple to the 2nd respondent and that the petitioner was threatened and coerced to hand over charge.

18. It is true that the petitioner has signed in English in the letter dated 20-7-1992 written by the 2nd respondent, in English. It is useful to reproduce this letter.

'From

Sri Mukkoor Srinivasa Varadachariar,

Person in Management,

A/M. Mahalakshmi Temple,

Besant Nagar,

Madras - 90

To

The Executive Officer,

A/M Parthasarathy Temple,

Madras -- 5.

I am to state that to-day I have commenced to hand over charge of A/M Mahalakshmi Temple, Besant Nagar, Madras-90 to the Executive Officer of A/M Parthasarathy Temple, Triplicane. I shall complete the charge on Wednesday the 22nd day of July without any hesitation.

This is for your information.

For Sri Mahalakshmi Trust, (Sd.) M. R. Srinivasa Varadachariar, Founder & Managing Trustee,

20-7-1992.

Witness :

M. S. Srinivasa Raghavan,

20-7-1992,

33, Mahalakshmi Colony,

Besant Nagar,

Madras -- 90.'

This letter has been witnessed by the petitioner's son M. S. Srinivasa Raghavan residing at No. 33, Mahalakshmi Colony, Besant Nagar, Madras-90. He has also put the date as 20-7-1992. The petitioner has only stated in paragraph 7 of the affidavit filed in support of the writ petition that the 2nd respondentarmed with the impugned order has come to his temple and making attempt to take over the management ignoring his right in the temple as its founder. In the circumstances, the petitioner has prayed this Court to stay the operation of the impugned order of the 1st respondent in appointing the 2nd respondent as its Executive Officer pending disposal of the writ petition. This Court also, on the basis of the allegation contained in paragraph 7 of the affidavit filed in support of the writ petition, has granted interim stay only for two weeks on 22-7-1992. But the fact remains otherwise.

19. The original letter and the other records pertaining to the take over of the temple on 20-7-1992 and 21-7-1992 have been produced before me for perusal. The petitioner having commenced to hand over charge on 20-7-1992 to the 2nd respondent without any protest or demur, has however, filed an affidavit before this Court (sworn to on 21-7-1992 and filed in this Court on the same date) with an entirely different version. Hence I do not find any merit in the contention of Mr. G. Subramaniam that the process of handing over was only commenced and not completed. Once possession is handed over voluntarily, the petitioner has no right to be in management of the temple and its properties any further even assuming that the petitioner was a person in management of the temple. Hence, on the facts and circumstances of the case and on a perusal of the records produced before me, I hold that the 2nd respondent has commenced to take charge on 20-7-1992 and the petitioner had voluntarily handed over charge on the same date and the interim order, which was granted only for two weeks and expired by now, cannot continue. Accordingly, I dismiss W. M. P. Np. 14296 of 1992 and allow W. M. P. No. 14925 of 1992.

20. It is also seen from the records produced by the 2nd respondent that he has taken a list of items of properties and has also made arrangements for sale of archana tickets and prasadam tickets and tickets for other ceremonies in the temple. The Hundials were sealed on 3-7-1992 and all the Bhatachariars have given the list of articles entrusted tothem in their respective sub-shrines. The 2nd respondents has also made payment to third parties through cheque and the balance amount available in bank deposit is Rs. 1,965/- as on 24-7-1992, the date of signing the affidavit. The 2nd respondent also reports that the daily collection from the institution is nearly Rs. 2,000/-, which is apart from the collections through Hundials, and on verifiction of the accounts, it is seen that the petitioner is keeping only a very small sum in the bank account. According to the 1st respondent, the temple is getting a sum of about Rs. 2,000/- per day as on 24-7-1992 by way of sale of archana and prasadam tickets and after meeting the expenses, a sum of Rs. 1,965/- was remitted to the bank on 21-7-1992 and, that therefore, one can reasonably apprehend that the minimum income of the temple would be about Rs. 2 lakhs per month through the collection of hundials, sale of archana tickets and prasadam tickets, etc., The amount outstanding in the bank was also very negligible.

21. Mr. G. Subramaniam, learned senior counsel for the petitioner has also produced befor this Court a true copy of the petition filed by the writ petitioner under S. 63(b) of the Act before the Deputy Commissioner, H. R. & C. E. (Admn.) Department, Madras-34, praying to enquire into the matter and declare that the petitioner is a person entitled to hold office as founder-cum-hereditary trustee of Sri Mahalakshmi Temple, Besant Nagar, Madras-90, controlled by Sri Maha-lakshmi Trust, which has been registered under the Societies Registration Act, within the meaning of Ss. 6(11) and 63(b) of the Act, and pass suitable orders. The said petition has been filed on 26-7-1992 i.e., after the judgment of this Court in L. P. A. No. 115 of 1992 dated 9-7-1992 and after the admission of the present writ petition and grant of stay by this Court on 22-7-1992. The said petition is still pending. Unless and until the said petition filed under S.63(b) of the Act is finally adjudicated upon by the Board, the petitioner cannot raise any claim to be in management of the temple. As stated above, he has failed before all the statutory authorities constituted under the Act and before the City Civil Courtand this Court. This Court has categorically held that institution in question is a religious institution within the meaning of S. 6(20) of the Act. Hence, the petitioner has absolutely no right to claim that he is entitled to a notice under S. 45(1) of the Act before the appointment of an Executive Officer.

22. It is also seen from the order impugned in the writ petition that the 1st respondent has specifically stated in that order that the power has been exercised for the better and proper administration of the temple in question, which in my view, is a relevant consideration. In my view, the power under S. 45(1) of the Act has been exercised by the 1st respondent only in accordance with the provisions of the Act. Since the 1st respondent has exercised his power under S.45(1) of the Act only on relevant considerations, I am of the view, that the exercise of such power cannot be challenged by the petitioner as being outside the purview of S. 45 of the Act. The only circumstance under which the 1st respondent cannot appoint an Executive Officer for a temple is where there is a hereditary trustee, in which case, the 1st respondent has to give notice of the proposed appointment and consider the objections of the hereditary trustee regarding such appointment. In the instant case, the petitioner has miserably failed to prove that he is the hereditary trustee and hence he is entitled to notice preceded by the appointment of the Executive Officer.

23. Strong reliance was placed by Mr. G. Subramaniam, learned Senior Advocate for the petitioner on the decision of a Division Bench of this Court reported in Commissioner, H. R. & C. E. (Admn.) Department, Madras v. K. Jothiramalingam, : AIR1985Mad341 to show that show cause notice against such appointment is essential under S. 45 of the Act. That was a case of a hereditary trustee, having been so declared by the judgment of this Court in A. S. No. 157 of 1961 dated 27-11-1963. According to the respondent in the above decision (K. Jothiramalingam), he had been in his capacity as such hereditary trustee submitting budgets, dhittam, etc., as contemplated under theprovisions of the Act and had been looking after the administration and management of the temple and maintaining its accounts, which has also been duly audited by the appropriate authorities under the Act. While matter stood thus, proceedings were initiated by the Assistant Commissioner, H. R. & C. E. Department, Cuddalore, to associate non-hereditary trustees with the respondent under S. 49 read with S. 47(2) of the Act on certain grounds and though the respondent submitted his objections, without affording any opportunity to him, the Assistant Commissioner called for applications for appointment of non-hereditary trustees, which led to the filing of R. P. No. 242 of 1974 by the respondent and his obtaining stay of the notification calling for applications for appointment of non-hereditry trustees. Ignoring the order secured by the respondent, the Assistant Commissioner proceeded to appoint two non-hereditary trustees to be associated with the respondent and that led to the filing of another application R. P. No. 41 of 1975 before the Commissioner, wherein also the respondent secured an order of stay. Later, the order of appointment of non-hereditary trustees was set aside by the Commissioner on the ground that the respondent was not given adequate opportunity to set out his objections. Despite these proceedings, the Commissioner, in the purported exercise of the powers vested in him under S.45(1) of the Act, initiated proceedings for the appointment of an Executive Officer on the ground that such appointment will pave the way for the better administration of the temple. The writ petition filed by the respondent to quash the order of the Commissioner was allowed on the ground that no opportunity was given to the respondent. The Department filed Writ Appeal. The Division Bench held that the Commissioner exercised his power under S. 45(1) of the Act by straightway appointing an Executive Officer without issuing notice to the respondent therein and after giving him opportunity to show cause against such appointment. Under those circumstances, the Division Bench held that the order of the Commissioner deserves to be quashed and Was rightly quashed by the earned singleJudge, and no case for interference with thatorder was made out and dismissed the WritAppeal with costs. In my view, the abovedecision will be of no assistance to the wri,tpetitioner herein, for, that decision wasrendered on the basis that the respondenttherein is a hereditary trustee. Admittedly, therespondent therein is a hereditary trustee andthe Department proceeded to appoint non-hereditary'trustees and Executive Officerwithout giving notice or opportunity or evenholding an enquiry as to the need for theappointment of such an Executive Officer :Hence, the Division Bench was of the viewthat any appointment of an Executive Officeror a non-hereditary trustee should be preceded by the issue of a notice to the hereditarytrustee to show cause why an ExecutiveOfficer should not be appointed. They alsorefer to the decision in Nagarajan v. Commissioner, H. R. & C. E. (Admn.) Department : AIR1971Mad295 ,which has considered the very questionarising in the Writ Appeal, wherein it has beenlaid down in no uncertain terms that notice isnecessary for a hereditary trustee before theappointment of a non-hereditary trusteeunder S. 45 of the Act. Hence, the decision in : AIR1985Mad341 , is not applicable to the facts and circumstances of the present case, which is distinguishable on facts.

24. The next decision relied on by Mr. G, Subramaniam is an unreported judgment of a Division Bench of this Court in W. P. No. 5474 of 1982, etc. batch dated 21-6-1983 (K.B.N. Singh, C. J., and S. Padmanabhan, J.). This judgment was cited for the proposition that the trustees who are functioning already should not be displaced during the pendency of the proceedings before the Commissioner. This judgment is not applicable to the present case for more than one reason viz., (i) The writ petitioner was not appointed as trustee by any one including the Department; (ii) He is only a self-styled trustee; and (iii) The question of allowing the petitioner to function does not arise.

25. Mr. G. Subramaniam next contended that the properties of the temple should be recovered from the petitioner by taking stepsunder the appropriate provisions of the Act. In support of his contention he cited paragraph 10 in the decision reported in Roopa-linga Chettiar v. Deputy Commissioner, H. R. & C. E. Department, Madras, 97 Law Weekly 424, which is as follows:--

'The question then for consideration is what shall be the date from which the non-hereditary trustees appointed under the Act would hold office. In all such cases, there should be a procedure under which the new appointee who is appointed as a trustee of a religious institution acknowledges in writing that he has assumed charge of his office. In cases where persons appointed by H.R. & C.E. authorities themselves, are holding the office, it is expected that they should also acknowledge in writing that they had handed over charge and the newly appointed trustees should equally acknowledge in writing that they have taken charge of their office. There may however be cases where non-hereditary trustees are appointed and the hereditary trustees who are already holding the office may not be willing to hand over charge to the newly appointed trustees. In such situations, it is expected that the newly appointed trustees should acknowledge in writing to the authorities concerned that they have assumed charge of their office and thereafter taking appropriate proceedings as provided in the Act for the recovery of the possession of the properties and records of the concerned institution. It is not clear from the counteraffi-davit whether such a procedure is being followed or not followed by the H.R. & C.E. Department. In all the cases before us it is not disputed that a fit person appointed by the Department itself was holding the office by the time when the petitioners were appointed as non-hereditary trustees. In such circumstances, there must be something in writing to show that the fit person who is in charge of the affairs of the religious institution handed over charge of his office to the newly appointed trustee and that the newly appointed trustee took over charge from the fit person. The date of such handing over charge and taking over charge would be the date from which normally the newly appointed trustee would commence to hold office and he shall beeligible to hold office under S. 47 for a period of three years from the date of assumption of office. We make it clear that in future as and when new trustees are appointed the authorities should have it recorded in writing that the newly appointed trustees have taken over charge from the persons already holding the office and the latter had handed over the charge. In cases where hereditary trustees in whose place or along with him the newly appointed trustees are appointed refuse to hand over charge, the newly appointed trustees should record that they have assumed office notwithstanding the refusal of the existing trustees to hand over charge and that they would be taking appropriate steps to recover possession of the properties of the institution. This is implicit in S. 47(3) itself where it provides that a trustee shall hold office for a term of three years.'

This does not arise in the instant case since the petitioner herein has handed over charge without any protest. In view of this, the stay sought for, which had been granted on 22-7-1992, had become infructuous. The petitioner has suppressed the fact that the charge has been handed over by him and taken by the 2nd respondent on 20-7-1992. The 2nd respondent is functioning as Executive Officer with effect from 20-7-1992.

26. For the foregoing reasons, I dismiss the writ petition. However, there will be no order as to costs.

27. Petition dismissed.