(Appeal filed against the order dated 6.12.2005 passed in W.P.M.P.No.22463 of 2005 in W.P.No.20575 of 2005, dismissing the petition for interim direction.)

Common Judgment

W.A.No.2351 of 2005 is preferred against the order dismissing the interim direction petition filed by the appellant/petitioner herein seeking direction to the respondents to handover the charge of Arulmigu Sankaralinga Swamy Temple etc., Devasthanam, North Chokkar Street, Tenkasi to the appellant/petitioner.

2. W.A.No.2352 of 2005 is against the order in W.V.M.P.No.1553 of 2005, vacating the interim stay of operation of the order of the Commissioner, Hindu Religious and Charitable Endowment Department, Chennai, appointing the 5th respondent herein as Executive Officer of Arulmigu Sankaralinga Swamy Temple etc., Devasthanam, Tenkasi.

3. As the writ appeals arise from the interim orders passed by the learned single Judge of this Court, this Bench directed to list the writ petitions also along with the writ appeals for final disposal.

4. The order in proceedings No.Na.Ka.No.31654/2002/L5, dated 17.3.2005 passed by the Commissioner of Hindu Religious and Charitable Endowment Department, Nungambakkam, Chennai - 34, appointing the 5th respondent herein as Executive Officer of Arulmigu Sankaralinga Swamy Temple etc., Devasthanam, North Chokkar Street, Tenkasi, is under challenge in W.P.No.14392 of 2005.

5. In W.P.No.20575 of 2005 petitioner seeks a direction to the respondents to hand over the charge of Arulmigu Sankaralinga Swamy Temple etc., Devasthanam, Tenkasi, to the petitioner and rest of the scheme Trustees.

6. The facts that are necessary for the disposal of the above writ petitions are as follows,

(a) The group of temples, namely (1) Arulmigu Sankaralinga Swamy Temple, North Chokkar Street, Tenkasi; (2) Arulmigu Tripura Sundari Ammal Temple, South Oppanai Street, Tenkasi; and (3) Arulmigu Vinayagar Temple, South Chokkar Street, Tenkasi, belong to Velakurichi Sengunda Mudaliar Community of Tenkasi Town and the said temples were established and maintained by the Velakurichi Sengunda Mudaliars themselves. The temples are managed by forming a Devasthanam in the name and style Arulmigu Sankaralinga Swamy Temple, etc., Devasthanam, which is in administration of the temples as per the scheme formed in the General Body held on 4.7.1943. For administration of the temple, five trustees, belonging to Velakurichi Senguntha Mudaliyar Community of Tenkasi Town, were elected. One K. Shanmughasundaram, the 6th respondent herein was appointed as Managing Trustee as well as President of the Community. Petitioner is also one of the elected trustee.

(b) The case of the petitioner is that the 6th respondent, instead of looking after the welfare of the temples, diverted the temple funds for his private purposes and appropriate accounts were not placed before the General Body and therefore rest of the trustees addressed a letter to the Managing Trustee/6th respondent herein, to convene a General Body meeting, but the same was not complied with. It is further alleged that the 6th respondent was acting detrimental and adverse to the interest of the temples and his activities were also against the interest of the community and therefore some of the community members filed a suit in O.S.No.21 of 2001 against all the Trustees on the file of the Sub Court for declaration, permanent injunction and for rendition of accounts and the said suit was transferred to the District Munsif Court, Tenkasi and renumbered as O.S.No.132 of 004 and the matter is still pending. It is further stated that the learned District Munsif in I.A.No.1775 of 2004 directed the 6th respondent to furnish the accounts as well as produce certain documents, which are in his custody.

(c) It is the further case of the petitioner that the 5th respondent instead of complying with the above direction and convening general body, had chosen to submit a representation to the second respondent alleging certain allegations against the trustees. The second respondent without verifying the correctness or otherwise of the allegations and without issuing any notice to the trustees, passed an order on 17.3.2005 purported to be under section 45(1) of the HR&CE Act (Act 22 of 1959) and appointed the 5th respondent as Executive Officer. The said order appointing the 5th respondent as Executive Officer of the Temple is challenged in the first writ petition.

(d) The main ground of attack in the affidavit is that the temples are community temples and HR&CE department has no jurisdiction over the temples and the said position is also declared in A.S.No.73 of 1982 by the competent Civil Court, wherein it is held that the temples are denominational temples and getting protection under Article 26 of the Constitution of India and before proceeding with the appointment of the Executive Officer under Section 45(1) of the Act, notice ought to have been given and non-issuance of notice is against the principles of natural justice.

7. The second respondent has filed a counter affidavit in which it is contended that the temples are already declared as denominational temples by the appellate Court in A.S.No.73 of 1982 by judgment dated 8.9.1983 and no doubt the temples belong to the community and trusteeship and for the purpose of management they vest with the members of the community, but if there is any mismanagement, the second respondent is empowered to appoint Executive Officer under section 45(1) of theeven though they are community and denominational temples. According to the second respondent there are two groups in the community and the 6th respondent voluntarily come forward to hand over the management of the temples to the department and therefore in the interest of the temples and public worship, the second respondent appointed 5th respondent as Executive Officer of the temples.

8. The learned counsel for the petitioner during his arguments stressed the point that before passing the impugned order appointing 5th respondent as Executive Officer, the second respondent did not issue any notice to the petitioner or to other Trustees.

9. Admittedly, the second respondent exercised the power under section 45(1) of the HR&CE Act. Section 45(1) deals with the power of Commissioner to appoint Executive Officers subject to such conditions as may be prescribed notwithstanding anything contained in the.

10. In the decision reported in 1980(2) MLJ 358 (T.Vellala Samudayam v. State of Tamil Nadu) in paragraph 15, this Court held that even though the denomination has a right to administer the temples, if there is any maladministration, the departmental authorities would be in a position to exercise the necessary powers to the extent possible under the statute.

11. Section 45 of the Act, even though empowers the second respondent to pass an order appointing Executive Officer, that power has to be exercised in terms of the policy of the. The said power shall be exercised coupled with a duty. Therefore it is the duty of the second respondent to see as to whether the Executive Officer has to be appointed for better and proper administration of the group of temples.

12. As pointed out above, no doubt the second respondent is empowered to appoint Executive Officer under section 45(1) of the. But to exercise the said power, there must be a maladministration by the trustees and to find out whether there is any maladministration or not, it is the duty of the second respondent to issue notice to the trustees, hear their objections and only after prima facie satisfaction of the maladministration, the second respondent is empowered to exercise the power under section 45(1) of theand appoint the Executive Officer.

13. Here in this case, based on the complaint/representation given by the 6th respondent, the impugned order is passed at the instance of the 6th respondent, appointing 5th respondent as Executive Officer, but without issuing notice to the petitioner or other trustees. A perusal of the impugned order amply establishes the fact that the second respondent has not issued any notice to any of the trustees including the petitioner. The administration of the temples, particularly the denominational temples, by the trustees is a valuable right and the same cannot be lightly divested under the guise of exercising power under section 45(1) of the HR&CE Act. The impugned order having civil consequences against the petitioner and other trustees, the second respondent is bound to give notice to the petitioner and other trustees and only after hearing their objections, if any, the Executive Officer can be appointed, if the explanation submitted by the trustees are not satisfied.

14. The Honourable Supreme Court in the decision reported in AIR 1991 SC 1117 [LQ/SC/1991/187] (S.C. and Weaker Section Welfare Association (Regd.) v. State of Karnataka), in paragraph 15 held as under,

"It is one of the fundamental rules of our constitutional set-up that every citizen is protected against exercise of arbitrary authority by the State or its officers. If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power and the rule of natural justice operates in areas not covered by any law validly made. What particular rule of natural justice should apply to a given case must depend to an extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the body of persons appointed for that purpose. It is only where there is nothing in the statute to actually prohibit the giving of an opportunity to be heard, but on the other hand, the nature of the statutory duty imposed itself necessarily implied an obligation to hear before deciding that the audi alteram partem rule could be imported. ..."

15. In the case on hand, the second respondent without giving notice to the petitioner or to other trustees straight away issued the impugned order appointing the 5th respondent as Executive Officer vesting all the powers of the trustees, which action has got civil consequences. As held by the Apex Court in the decision cited supra, when the rights of the parties are likely to be affected by virtue of his action in appointing the Executive Officer, it is incumbent on the part of the second respondent to issue notice to them, for the compliance of principles of natural justice. Therefore, we hold that the failure on the part of the second respondent in not issuing notice to the petitioner as well as to other trustees vitiates the impugned order dated 17.3.2005.

16. In view of the above conclusion, both the writ petitions are allowed and the impugned order dated 17.3.2005 passed by the second respondent is set aside. It is however open to the second respondent to issue notice to all the trustees and after hearing their objections, if any, pass fresh orders, if the same is warranted.

17. In view of the disposal of the writ petitions as above, no orders are required in the writ appeals and the same are also disposed of. Connected miscellaneous petitions are closed.