Disposed

T.v.Muthukumar, v. the Commissioner

Madras HC1 Oct 2021WP/5049/2013

Case brief

AI extract

What is this about?

The High Court declined to interfere with the order removing the petitioner as Templet Trustee, holding that the statutory remedy under Section 53(5)(i) of the TN HR&CE Act should be availed. The Court disposed of the writ petition but preserved the petitioner's rights to approach the Government.

What did the court decide?

Writ petition disposed of as closed; window for statutory appeal preserved; order to return original impugned order.

T.v.Muthukumar, Vs the Commissioner — Writ and Judicial Review | Madras HC (2021)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 01.10.2021

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CORAM

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THE HON'BLE Mr.JUSTICE M.SUNDAR

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W.P.No.5049 of 2013 and W.M.P.No.1 of 2013

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T.V.Muthukumar

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S/o. Late T.M.Vaithialingam Pillai ...Petitioner

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-Vs.-

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The Commissioner, H.R. & C.E(Admin) Dept,Chennai – 34.

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The Joint Commissioner, H.R. & C.E(Admin) Dept, Kottai Mariamman Complex, Salem.

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The Fit Person/The Executive Officer,

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A/m.Mariamman and Chellandi Amman Temple, Now appointed as Fit Person in

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A/m.Chinna Ongaliamman Temple,

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Tiruchengode Town & Taluk,

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Namakkal District. ...Respondents

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Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorari, calling for the records relating to the impugned order passed by the commissioner, HR & CE, Chennai, issued in his proceedings Nadavadikkai Na.Ka.No.55879/2008/A2 dated 12.02.2013 and signed by the Additional Commissioner on 18.02.2013 and quash the same.

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For Petitioner : Mr.T.Vijayaraghavan

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For Respondents : Mr.NRR.Arun Natarajan

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Government Advocate

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Mr.T.S.Vijayaraghavan, learned counsel who has entered appearance in place of Late W.C.Thiruvengadam lone counsel on record for sole writ petitioner and Mr.NRR.Arun Natarajan, learned State counsel for three respondents are before this Court.

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At the outset, this Court is informed that an inadvertent factual error has crept into proceedings of this Court dated 31.08.2021 and more particularly, paragraph No.4 thereat which reads as follows: https://hcservices.ecourts.gov.in/hcservices/

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'4. Learned State counsel Mr.NRR.Arun Natarajan submits on instructions that writ petitioner is no more and more particularly, his spouse M.Shanthi has since assumed office as hereditary trustee of said Temple. Responding to this submission of learned State counsel, learned counsel for writ petitioner submits that the order regarding the writ petitioner's spouse as hereditary trustee of said Temple mentions that it is subject to the outcome of captioned writ petition.'

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This Court is informed that on the suspension of writ petitioner after enquiry, a Fit person was appointed and thereafter, the writ petitioner's spouse M.Shanthi was recorded as a Hereditary Trustee of said Temple and to this extent, paragraph No.4 supra is factually incorrect. This error is regretted. Therefore, paragraph No.4 of 31.08.2021 order will now read as follows:

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'Learned State counsel Mr.NRR.Arun Natarajan, submits on instructions that the writ petitioner was suspended after enquiry, a Fit person was appointed and thereafter, the writ petitioner's spouse M.Shanthi was recorded as a Hereditary Trustee and she assumed office as Hereditary Trustee. This Court is informed that the Fit person therefore, ceased to function and the writ petitioner's spouse M.Shanthi is now functioning as Hereditary Trustee of said Temple. However, the submission of learned State counsel that the order regarding writ petitioner's spouse being recorded as Hereditary Trustee mentions that it is subject to the out come of the captioned writ petition and this is reiterated.'

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To be noted, 31.08.2021 proceedings is to be corrected and uploaded again i.e., re-transferred along with uploading of this order.

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Reverting to captioned writ petition on hand, Arulmighu Chinna Ongaliamman Temple shall be referred to as 'said Temple', charges i.e., as many as 17 charges were initiated against the writ petitioner and an order came to be passed by first respondent (Commissioner) under Section 53(2) of 'The Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (Tamil Nadu Act No.22 of 1959)' [hereinafter 'TN HR&CE Act' for the sake of convenience and clarity]. This is 'order dated 18.02.2013 bearing reference Na.Ka.No.55879/2008/A2' [hereinafter 'impugned order' for the sake of convenience and clarity] which has been called in question in captioned writ petition.

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Notwithstanding very many averments made in writ affidavit and very many grounds raised in writ affidavit, learned counsel for writ petitioner draws the attention of this Court to one paragraph in the impugned order which reads as follows:

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https://hcservices.ecourts.gov.in/hcservices/ 'guk;giu mw';fhtyh; jpU/o.tp/Kj;JFkhh; kPJ Rkj;jg ;gl ;l 17

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Fw;wr ;rhl ;Lfs ; bjhlh;ghf tprhuiz nkw;bfhs;s Mizauhy; 15/09/2010 kw;Wk ; 1/10/2010y; mwptpg;g [ mDg;gg ;gl ;L /2/11/2010 njjpad;W Mizahpd; neuo tprhuizf;F guk;giu mw';fhtyh; M$uhfp jdJ thf;FK :yj ;jpid rkh;g ;gpj ;jpUe ;jhh;/ nkw;go thf;F K:yj ;jpy ; 27/7/2009 ehspl;l fojj;jpy ; rkh;g ;gpj ;Js ;s jdJ vGj;J K:y tpsf;fjpidna jdJ thf;FK :ykhf Vw;Wf ;bfhs;SkhW nfl;Lf ;bfhz;Ls ;shh;/'

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Learned counsel submits that the impugned order came to be passed three years after the above event.

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Under the normal circumstances, I would have been inclined to interfere if an order has been passed three years after arguments being heard and orders being reserved, but in the instant case, a perusal of aforementioned paragraph makes it clear that no arguments were made and on the contrary, writ petitioner has merely stated that the statements already given can be considered as his stated position and orders can be passed.

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Owing to the aforesaid trajectory, which the matter has taken before second respondent, I am not inclined to interfere with this order in this case. This proceedings of mine is buttressed, by the submission of learned State counsel by adverting to a detailed counter affidavit and more particularly, paragraph No.5 thereat wherein proceedings before the second respondent have been extracted and reproduced. Paragraph No.5 of the counter affidavit reads as follows:

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'With regard to paragraph 3 of the affidavit, is submitted that the then Commissioner after going through the entire records framed 17 charges against the writ petitioner which includes 1) serious irregularities (2) mismanagement, (3) embezzlement of temple money (4) misappropriation of several lakhs of money (5) procedural lapses (6) violation of various rules framed under Tamil Nadu HR&CE Act (7) failure to augment reasonable income from the immovable properties belong to the temple. The writ petitioner submitted his explanation on 27.2.2009. The said explanation was forwarded to Joint Commissioner, Salem for verification with temple records and his remarks. After getting a detailed report, enquiry notice was issued to this writ petitioner to appear on 27.9.2010. But, the writ petitioner citing his inability to appear on that date sought for another date. Hence, the enquiry was adjourned to 2.11.2010. On 2.11.2010, the writ petitioner appeared and gave a deposition which is extracted as below:

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"brd;id. ,e;J rka mwepiyaj;Jiw. Mizah; mth;fs ; Kd;ghf , d;W (02/11/2010) Mizah; br/K/el/e/f/vz;/55879,2008-m2. ehs; 12/01/2009 Fwpg;gpy ; Vw;gLj;jg ;gl ;l Fw;wr ;rhl ;Lfs; bjhlh;ghf guk;giu mw';fhtyh;

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o/tp/Kj;Jf ;Fkhh;. j-bg/o/vk;/itj;jpayp';fk; (late) https://hcservices.ecourts.gov.in/hcservices/ Mfpa ehs; nehpy; M$uhfp mspj;j thf;FK :yk ;/

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ehkf;fy ; khtl;lk ;. jpUr;br';nfhL efh; kw;Wk ; tl;lk ;. mUs;kpF rpd;d Xk;fhspak;kd ; jpUf;nfhapypd; guk;giu mw';fhtyuhf Rkhh; 12 Mz;Lfshf ,Ue;J tUfpnwd;/ vd; kPJ Mizah; br/K/el/e/f/vz;/55879,2008-m2 ehs; 12/01/2009 Fwpg;gpd; K:yk ; 17 Fw;wr ;rhl ;Lfs; Rkj;jp tpsf;fk ; nfhug;gl ;lJ/ vdf;F VG tajhFk; nghJ vdJ je;ijahh; ,we;Jtpl;lhh ;/ rpW tajhf ,Ue;j fhuzj;jhy; jpUf;nfhapypd; epUthfj;ij ftdpf;f ,ayhj NH;epiyapy; ,e;J rka mwepiyaj;Jiw K:yk ; mw';fhtyh;fs ; epakdk; bra;J mth;fs ; epUthfj;ij ftdpj;J te;jdh;/ ,e;epiyapy; guk;giu mw';fhtyh; chpik nfhhp ,e;J rka mwepiyaj;Jiw. nryk; ,iz Mizah; Kd;ghf tHf;F jhf;fy; bra;J vk;/gp/8-98 ehs; 07/12/1998d;go guk;giu mw';fhtyh; cj;jut[ bgw;W bray;gl ;L tUfpnwd;/ vdf;F Kd; ,j;jpUf;nfhapypd; gjtp tfpj;j mw';fhtyh;fs ; vg;go epUthfj;ij ftdpj;J te;jhh ;fnsh mjd;gona ehDk; ,j;jpUf;nfhapypd; guk;giu mw';fhtyuhf bghWg;ngw;wgpd; epUthfj;ij ftdpj;J te;njd;/ ehd; rpW tajhf ,Ue;jjhy; vdf;F ,e;J rka mwf;bfhilfs; rl;l tpjpKiwfs; bjhpahJ/ ehd; guk;giu mw';fhtyuhf bghWg;ngw;wgpd; jpUf;nfhapypd; jpUtpHhf;fs ; btFtpkhpirahf bfhz;lhlg;gl ;L tUfpwJ/ nkYk; , j;jpUf;nfhapypd; tsh;r ;rpf;fhf gy Kaw;rpfis nkw;bfhz;Ls ;nsd;/ jpUf;nfhapiyr; Rw;wp kpft[k ; rpwpa ,lkhf ,Ue;jjhy;. ehd; guk;giu mw';fhtuhf bghWg;ngw;W vdJ rPhpa Kaw;rpapdhy; jpUf;nfhapiyaLj;j jpUr;br' ;nfhL efuhl;rpf ;F brhe;jkhd 8000 rJu mo ,lj;ij jpUf;nfhapypd; gad;ghl;ow ;fhf Fiwe;j thliff;F bgw;W gf;jh ;fspd; cgnahfj;jpw;fhf gad;gLj;jg ;gl ;L tUfpwJ/ me;j ,lj;jpy; gf;jh ;fs ; jw;nghJ bgh';fy ; itj;J j';fsJ gpuhh;j ;jidia epiwntw;wp tUfpwhh;fs ;/ jpUf;nfhapypd; fzf;Ffs; gryp 1419 Koa jzpf;if bra;a ;ggl;Ls ;sJ/ Fw;wr ;rhl ;LfSf;F vdJ tphpthd tpsf;fj ;ij 27/02/2009 ehspl;l fojj;jpy; mDg;gpa[s ;nsd ;/ mjidna Fw;wr ;rhl ;LfSf;F vdJ thf;FK :ykhf vLj;Jf ;bfhs;s nfl;Lf ;bfhs;fpnwd;/ Fw;wr ;rhl ;LfSf;F mspj;j vGj;JK :ykhd tpsf;fk ; kw;Wk ; vdJ thf;FK :yk ; Mfpatw;iw ghprPypj;J vd; kPJ Rkj;jg;gl ;l Fw;wr ;rhl ;Lfis iftpLkhW gzpt[ld ; nfl;Lf ;bfhs;fpnwd ;/ ,e;j tprhuizapy; jdpahf tpsf;f' ;fs ; vJt[k ; mspf;f tpUk;gtpy;iy/ Mtz';fs ; g[jpajhf vJt[k ; jhf;fy ; bra;atpy;iy/ rhl;rpa';fs ; ahiua[k ; ehd; tprhhpf;f tpUk;gtpy;iy/ nkw;fz ;l tpsf;f' ;fis Vw;W vd; kPJ Rkj;jg ;gl ;l Fw;wr;rhl;Lfis iftpLkhW gzpt[ld ; nfl;Lf ;bfhs;fpnwd;/" '

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Adverting to aforesaid proceedings, learned State counsel submitted that the writ petitioner made it clear that he does not want to give further explanation he does not want to file any documents and he does not want to examine any witnesses. This means that the Commissioner has passed orders on the basis of available records. Therefore, ideally, though the orders should have been passed expeditiously, it is not a ground for warranting interference by this Court, as the orders have been passed based on the available record. There is yet another reason as to why I am not inclined to interfere qua impugned order. The reason is, as already alluded to supra, the impugned order has been made by the first respondent (Commissioner) under Section 53(2) of TN &HRCE Act. In an order under Section 53(2) of TN HR&CE Act (in https://hcservices.ecourts.gov.in/hcservices/ this case removal of Hereditary Trustee from the office of

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said Temple) an appeal lies to the Government under Section 53 (5)(i) of TN HR&CE Act which reads as follows:

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'53. Power to suspend, remove or dismiss trustees.—

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(1) ........................... (a) ......................... (b) ........................ (c) ........................ (d) ........................ (2) ....................... (a) ......................... (b) ........................ (c) ........................ (d) ........................ (e) ........................ (f) ....................... (g) ...................... (h)...................... (i) ..................... (j) ...................... (k) ...................... (l) ....................... (3) ..................... (4) .....................

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(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—

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(i) where the order has been passed by 1[the Commissioner, to the Government];'

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To be noted, the above is a statutory appeal. Ideally, the writ petitioner should have resorted to statutory appeal. To be noted, this is not a case where Section 114 of TN HR&CE Act is attracted.

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Faced with the above situation, learned counsel for writ petitioner submitted that it would serve the purpose if a window is left open for the writ petitioner to approach the Government by way of statutory appeal. It is made clear that it is open to writ petitioner to approach the Government by way of a statutory appeal under Section 53(5)(i) of TN HR&CE Act, if the writ petitioner chooses to do so, subject to limitation, plea of exclusion of time spent in the writ petition under Section 114 of TN HR&CE Act shall be decided on its own merits and in accordance with law by the Government. Subject to the decision on the limitation in this manner, if the statutory appeal is entertained, the same shall be examined on its own merits and in accordance with law by the Government uninfluenced by any observation made in this order, which may have trappings of expression of opinion or view on merits of the matter. In other words, the Government shall consider the appeal (subject to Government orders on https://hcservices.ecourts.gov.in/hcservices/ limitation) untrammeled by this Order.

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This takes us to another facet of the matter and that is surcharge proceedings having been initiated against the writ petitioner under Section 90(2) of TN HR&CE Act. This Court is informed without any disputation or disagreement that surcharge proceedings are now pending before the second respondent i.e., Jurisdictional Joint Commissioner. To be noted, Joint Commissioner, Salem.

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The aforementioned surcharge proceedings shall be proceeded with by the second respondent as expeditiously as possible, as early as the official business of the respondent would permit and in any event, within four months from today i.e., on or before 04.02.2022.

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The above draws the curtains on the captioned writ petition. Captioned Writ Petition is disposed of as closed, leaving open the aforementioned window and preserving the rights of writ petitioner to the limited extent set out supra. To be noted, all questions including the questions raised in this writ petition are left open for the writ petitioner to canvass in the statutory appeal, if it is entertained. Consequently, connected miscellaneous petition is closed. There shall be no order as to costs.

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Sd/-

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Assistant Registrar(CS IV)

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//True Copy//

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Sub Assistant Registrar

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P.S.

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After the order was pronounced, learned counsel for writ petitioner requested for return of original impugned order for the purpose of preferring statutory appeal before the Government under Section 53(5)(i) of TN HR&CE Act. Registry to return the original impugned order to learned counsel on record for writ petitioner under due acknowledgment forthwith. To

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The Commissioner,

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H.R. & C.E(Admin) Dept,Chennai – 34.

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The Joint Commissioner, H.R. & C.E(Admin) Dept,

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Kottai Mariamman Complex,Salem.

Copy to:

The Section Officer,

ER Section,

High Court,Madras

+1 cc to Government Pleader Sr.NO. 51747

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+1 cc to Mr.T.S.Vijayaragavan, Advocate Sr.NO. 54170

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W.P.No.5049 of 2013 SMI (CO)

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https://hcservices.ecourts.gov.in/hcservices/ A.SK(25.10.2021)

T.v.Muthukumar, v. the Commissioner

Case brief

What is this about?

What did the court decide?

T.v.Muthukumar, v. the Commissioner

Case brief

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