Allowed

A.Suresh Kumar v. the Joint Commissioner

Madras HC21 Jan 2022WP(MD)/21964/2016

Case brief

AI extract

What is this about?

The Madurai Bench of the Madras High Court addressed a writ petition challenging a temporary suspension order against a temple Poosari. The court held that the temple was a public temple under the HR&CE Act, requiring protection of its properties. It directed the appointment of a fit person as Trustee to expedite pending inquiries and terminate the prolonged suspension proceedings.

What did the court decide?

Appointment of a fit person as Trustee to examine the SCN appeal and conclude proceedings; termination of the appeal filed before the First Respondent; adjudication of O.A.No.13 of 2010 regarding trus

A.Suresh Kumar Vs the Joint Commissioner — Property and Title | Madras HC (2022)

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W.P(MD)No.21964 of 2016

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 21.01.2022

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CORAM

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THE HON'BLE MR. JUSTICE M.SUNDAR W.P(MD)No.21964 of 2016 and W.M.P.(MD)No.15700 of 2016

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A.Suresh Kumar ... Petitioner

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-Vs-

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1.The Joint Commissioner, Hindu Religious and Charitable Endowments Administration Department, Trichy.

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2.Arulmighu Vanniamman Temple Minnampalli, Karur Taluk, Represented by its Managing Trustee, Allied Ganesan, Allied Textiles & Dyeings, Vengamedu, Kamadenu Nagar, Pugalur Road,Karur District. ... Respondents

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Prayer: Writ Petition filed under Article 226 of Constitution of India, to issue a Writ of Certiorari, calling for the records of the 2^nd respondent dated 26.07.2011 and quash the same.

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For Petitioner : Mr.J.Anandhavalli For Respondents : Mr.M.Lingadurai, Special Government Pleader for R1 Mr.V.Balaji for R2

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Captioned main writ petition has been filed assailing an order of temporary suspension of writ petitioner vide order dated 26.07.2011 (impugned order) made by the Chairman of the Trust Board of 'Arulmighu Vanniamman Temple, situate in Minnampalli Village, Karur District' ('said temple' for the sake of convenience and clarity).

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To be noted, the case of the writ petitioner is that he is a Trustee cum Poosari in said temple.

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Short facts imperative for appreciating this order are that the said temple is an ancient temple which is more than 300 years old; that the said temple was built during the Chola dynasty; that the Chola Kings had donated lands; that vide order dated 18.08.2008 made by the first respondent in O.A.No.3 of 2001 {scheme proceedings under Section 64(1) of '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 brevity, convenience and clarity]} five Trustees were appointed and one amongst them was elected as Chairman of the Trust Board; that this Trust Board assumed office for a period of three years on and from 21.10.2008; that three years period of Trust Board elapsed on 21.10.2011; that the Chairman of the Trust Board issued a show cause notice (SCN) dated 15.07.2011 to the writ petitioner pertaining to certain criminal proceedings; that writ petitioner responded in and by a reply / explanation dated 20.07.2011; that the Chairman of the Trust Board made the impugned order, placed the writ petitioner under temporary suspension inter alia holding that the explanation given by the writ petitioner (in response to SCN) is not satisfactory; that even before the impugned order was made, the writ petitioner assailed the SCN dated 15.07.2011 before the second respondent by way of an appeal purportedly under Section 56(1) of TN HR&CE Act; that pending appeal as the impugned order was made, a stay petition was moved purportedly under Section 56(3) of TN HR&CE Act seeking stay of the impugned order; that this Court is informed that these proceedings are pending; that pending such proceedings the writ petitioner was put on the wise that the appeal before the first respondent is not maintainable as it is a case of temporary suspension (articulated in paragraphs 15 and 16 of the writ affidavit); that on being put on the wise the writ petitioner filed the captioned writ petition in this Court on 15.11.2016 assailing the impugned order.

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Notwithstanding very many averments in the writ affidavit and notwithstanding several grounds raised in the writ affidavit Ms.J.Ananadavalli, learned counsel for the writ petitioner in her campaign against the impugned order made pointed submissions, a summation of which is as follows:

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a) there is no allegation of misconduct qua said temple against the writ petitioner and therefore, the temporary suspension is not sustainable;

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b) the impugned order was made on 26.07.2011, the same is operating, therefore, this is a case of prolonged suspension and therefore, it is liable to be interfered with;

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c) the impugned order having been made in 2011 the length of time militates against the impugned order.

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Mr.M.Lingadurai, learned Special Government Pleader appearing on behalf of the first respondent (jurisdictional Joint Commissioner of 'Tamil Nadu Hindu Religious and Charitable Endowments Department' [hereinafter 'TN HR&CE Dept.' for the sake of convenience and clarity] made submissions, a summation of which is as follows:

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a) the impugned order is clearly a case of temporary suspension pending enquiry into certain proceedings including criminal proceedings against the writ petitioner and therefore, it is clearly sustainable and well within the legal parameters of TN HR&CE Act;

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b) the writ petitioner has wrongly approached the first respondent and thereafter has come up with the present writ petition. The properties of said temple which is admittedly a public temple have to be protected and TN HR&CE Dept. has a sanctus duty to do so.

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Mr.V.Balaji, learned private counsel for the second respondent submitted that the Trust Board constituted by five individuals appointed on 18.08.2008 assumed office for a three years period on 21.10.2008 and the three year period (tenure ) elapsed in October 2011. He further submitted that the action of the then Chairman of the Trust Board of said temple was in the interest of said temple as according to the impugned order, the explanation given by the writ petitioner is not satisfactory but he does not want to say anything further now as the three year tenure has elapsed.

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By way of reply arguments, learned counsel for writ petitioner reiterated the submissions made in the opening arguments and emphasized that this is a case of prolonged suspension.

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This Court now embarks upon the exercise of discussion and dispositive reasoning qua rival submissions and the arguments made by respective counsel. As part of this discussion, dispositive reasoning, certain facts, collateral proceedings and certain other facets of the matter need to necessarily be noticed. The same shall be set out before embarking upon the discussion / dispositive reasoning qua core bone of contention.

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The first aspect is, as already alluded to supra, it is the case of the writ petitioner (paragraph 2 of the writ affidavit) that the writ petitioner is Trustee cum Poosari qua said temple. In paragraph 10 of the writ affidavit, the writ petitioner has averred that the writ petitioner and others have filed an application in O.A.No.13 of 2010 before the first respondent under Section 63(b) of TN HR&CE Act with a prayer for declaring the trusteeship of the https://hcservices.ecourts.gov.in/hcservices/ office of the said temple as hereditary and the same is pending.

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This Court is informed now in the hearing that it is still pending even as of today. This being the admitted case, writ petitioner can certainly not claim to be a Hereditary Trustee and as regards nonhereditary appointment, the 3 year tenure had elapsed as alluded to supra. The indisputable sequitur is writ petitioner is Poosari in said temple and not Poosari cum trustee as averred. Be that as it may, it is also to be noted that no document, no shred of paper has been placed before this Court to say that writ petitioner is a Poosari cum Trustee. Learned counsel for writ petitioner emphasized that the averment that writ petitioner is trustee-cum-poosari is not a new averment that has now been made for the first time in the instant case i.e., invented for the purpose of the case on hand as such averment has been made in the earlier writ affidavit in W.P. (MD)No.9527 of 2008 also. In the light of the discussion herein, this is no argument, it is a non starter and it makes no difference to the case on hand as it remains a self serving averment made by the writ petitioner with not even a shred of supporting document.

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The above takes us to earlier legal proceedings by which the writ petitioner and 11 others came to this Court i.e., W.P.(MD) No.9527 of 2008 which was filed on the pain of the writ petitioner being dislodged as Poosari and some others being deployed in his place. This writ petition came to be disposed of by a Hon'ble Single Judge in and by an order dated 30.04.2009 with a set of directions. This order was carried in appeal by the non-hereditary Trustee by way of a writ appeal i.e., an intra Court appeal vide W.A.(MD)No.353 of 2009 and a Hon'ble Division Bench dismissed the writ appeal in and by an order dated 23.07.2009 confirming the order of the Hon'ble Single Judge. A careful perusal of the order of the Hon'ble Single Judge and Hon'ble Division Bench makes it clear that it talks only about the petitioner's service as Poosari. There is no mention about the Trusteeship. Therefore, the primary averment that the writ petitioner is a Poosari cum Trustee is obviously unsustainable, it is floored and this Court makes it clear that this order proceeds on the basis that the writ petitioner is a Poosari qua said temple.

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The second aspect of the matter is, the impugned order talks about SCN dated 15.07.2011 and reply of the writ petitioner dated 20.07.2011 both of which have not been placed before this Court by both sides. Therefore what are the charges against the writ petitioner and what was the explanation of the writ petitioner is not before this Court. Ideally, the same should have been placed before this Court. This applies more to the writ petitioner as the writ petitioner has chosen to challenge the SCN before the first respondent by way of a purported appeal under Section 56(2) of TN HR&CE Act (mentioned as Section 56(1) of TN HR&CE Act as already alluded to supra) and the writ petitioner has also chosen to ask for stay of the impugned order. This Court is informed that these proceedings before the first respondent are still pending even as of https://hcservices.ecourts.gov.in/hcservices/ today.

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There is one other proceedings, that is W.P.(MD)No.8931 of 2010. There is a mention about this in paragraph 18 of the writ affidavit. This Court was informed by learned counsel for writ petitioner that there is a typographical error in the writ affidavit and W.P.(MD)No.8931 of 2012 has to be read as W.P.(MD)No.8931 of 2010. This Court therefore, read this as W.P.(MD)No.8931 of 2010 ferreted out the case file and perused the same. This Court chooses to use the term 'ferret' as W.P.(MD)No.8931 of 2010 file was pulled out from the disposed case files in the Registry. It was pointed out that it has been disposed of as part of a batch of cases that do not appear to have to do anything with the case on hand. It was thereafter that this Court was informed that there is a typographical error. This writ petition has been disposed of by a Hon'ble Single Judge by an order dated 12.04.2019 and a careful perusal of the order brings to light that the writ petitioner and 11 others have assailed an order dated 03.10.2009 made by the jurisdictional Revenue Tahsildar transferring patta of certain extents of land in the name of the said temple. This Court is informed that there is no intra Court appeal as against this order. This is recorded by way of factual detail that is necessary for completion of capturing the facts for appreciating this order. This Court refrains itself from expressing any view or opinion on writ petitioner filing such a writ petition owing to the nature of the order that is proposed to be made in the case on hand.

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With regard to the proceedings before the first respondent qua challenge to SCN paragraphs 12, 13, 15 and 16 of the writ affidavit are relevant and the same read as follows:

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'12.I respectfully submit that pursuant to the order passed in the writ petition which got confirmed in the writ appeal, and being agitated over the Poojaries achieved their object of entering into the temple which was closed at the hands of the 2^nd respondent, the 2^nd respondent by making some false allegations issued a show cause notice dated 15.07.2011 alleging false charges and seeking explanation from the petitioner and explanation to the said order was submitted by the petitioner on 20.11.2016. Not satisfied with the explanation, the 2^nd respondent passed an order of interim suspension on 26.07.2011. Since the show cause notice itself i.e., without jurisdiction and malafide exercise of power by the 2^nd respondent, I am advised to file an appeal before the 2^nd respondent, questioning the show cause notice. By the time the appeal was filed, the 2^nd respondent passed an order of interim suspension. Treating the said order as a consequential order, application for stay was filed seeking stay of the order of suspension.

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13. I respectfully submit that the order itself is a temporary suspension which has been prolonged for the

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past 5 years and 2 months. Absolutely there is no jurisdiction for passing the order of suspension and only to wreck vengeance against me as I initiated all the proceedings on behalf of the Poojaries hereditary trustees, the impugned order came to be passed.

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14...

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15. When the Advocate in High Court has contacted in August 2016 regarding instruction in some other case, she asked me about the doing of Pooja in the temple. Then I informed her about the filing of appeal and non grant of stay. On perusal of the order of suspension which is impugned in this writ petition, she informed me that appeal is maintainable only as against an order of suspension punishment and since the impugned order speaks temporary suspension appeal is not maintainable and therefore, I am advised to file the present writ petition.

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16.I respectfully submit that the impugned order of suspension is only a temporary suspension for which no appeal would lie under Section 56(2) of the Act. Therefore, the appeal is not maintainable and I am entitled to question the impugned order under Article 226 of the Constitution of India. I have no alternative efficacious remedy except to approach this Hon'ble Court .'

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This Court now proceeds to examine the rival submissions. The first argument is there is no misconduct qua the writ petitioner and therefore, the suspension is not warranted. As 15.07.2011 SCN and the writ petitioner's explanation dated 20.07.2011 are not before this Court, this argument cannot be appreciated. If at all there is any indication about the possible allegations against the writ petitioner the same is by way of the stand taken by the then Board of Trustees before the Hon'ble Single Judge in the aforementioned W.P.(MD)No.9527 of 2008. This is captured in paragraph 5 of the order of the Hon'ble Single Judge dated 30.04.2009 in W.P.(MD)No.9527 of 2008, which reads as follows:

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'5. The fifth respondent has filed a counter-

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affidavit on behalf of respondents 6 to 9. In the counter-affidavit, it was contended that the present Board of trustees took office on 21.10.2008 and they have appointed temporary poojaries to perform the poojas in the temple. According to the fifth respondent, on account of the irresponsible conduct of the poojaries, the main statue was stolen on 14.05.2008. As a result, the temple was locked for a period of about five months till the newly appointed trustees opened temple on 25.10.2008. Soon after the assumption of office by the trustees, they have conducted a board meeting on 21.10.2008 and it was

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decided to take action against the poojaries and to get back the compensation amount from the concerned poojaries illegally received by them from the Government for the acquisition of temple land, to take action against the poojaries, who have alienated about 23 acres of land belonging to the temple property and further to take appropriate action against those poojaries, who have committed serious offences causing loss to the temple. The fifth respondent has also denied the right of the petitioners to conduct the pooja in the temple. It was also contended that some of the poojaries have, without permission or authority, transferred their poojariship to strangers for valuable consideration. Even the first petitioner was one such poojaries, who have transferred their right. In such circumstances, the respondents 5 to 9 have prayed for dismissal of the writ petition.'

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(underlining made by this Court to

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supply emphasis and for ease of reference)

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However, this Court refrains itself from expressing any opinion on the possible charges or allegations as relevant material has not been placed before this Court.

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Suffice to say that there is a SCN dated 15.07.2011 and there was a response (explanation) by the writ petitioner dated 20.07.2011. Impugned order has been made on the basis that the explanation is not satisfactory. The impugned order makes it clear that it is jw;fhypf gzpe Pf ;fk; (temporary suspension).

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It may also be necessary to examine the competence of Chairman of the Trust Board. As rightly pointed out by learned State Counsel this is captured in sub-paragraph (vi) of paragraph 21 of the Hon'ble Single Judge's order. Paragraph 21 of the Hon'ble Single Judge's order dated 30.04.2009 in W.P.(MD)No.9527 of 2008 reads as follows:

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'21. Accordingly, the following directions are

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issued:-

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(i) The respondents 5 to 9 are directed to take the service of the petitioners for conducting pooja in the temple.

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(ii) The respondents 5 to 9 are entitled to prepare a roaster to employ the petitioners as poojaries on turn basis.

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(iii) The earlier practice followed in the temple and as indicated in paragraph-2 of the additional affidavit filed by the petitioners has to be taken note of by the trust board, while preparing the roaster.

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(iv) The petitioners are not entitled to perform https://hcservices.ecourts.gov.in/hcservices/ poojas together in a given day and they have to follow

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the roaster prepared by the board of trustees.

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(v) The petitioners are not entitled to transfer their right as poojaries. The petitioners alone are entitled to the benefits of this order and they cannot appoint their agents to perform pooja.

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(vi) The trust board is at liberty to take appropriate action against the petitioners or other poojaries in accordance with the decision of the board of trustees dated 21.10.2008.

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(vii) The trust Board is also at liberty to take appropriate steps to recover the property of the temple in the manner known to law.

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(viii) The petitioners would be under the administrative control of the board of trustees in their conduct of pooja in the temple.

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(ix) The petitioners have no right to take an independent decision with respect to the administration or conduct of pooja in the temple and their right is only to conduct pooja as per the practice followed in Vanniamman Temple.'

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To be noted, the above has been affirmed by a Hon'ble Division Bench and while affirming the same, the aforesaid set of directions have been clearly reproduced by the Hon'ble Division Bench. Therefore, the power of the Trust Board to make the impugned order is beyond any pale of doubt.

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This takes us to the last point i.e., prolonged suspension. The writ petitioner has assailed the SCN itself before the first respondent and thereafter filed the instant writ petition. The instant writ petition has taken over half a decade to see the light of the day i.e., to be taken up for final disposal. Therefore, this is owing to the multiple trajectories the matter has taken which are all the writ petitioner's own making.

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This court reminds itself that the said temple is a public temple. The said temple being a public temple, this Court is parens patriae . The presiding deity i.e., idol is in the status of a minor and this Court is the guardian. This principle is well settled in a long line of authorities and one of the lead case laws is A.A.Gopalakrishnan's case [ A.A.Gopalakrishnan v. Cochin Devaswom Board and Ors., ] reported in (2007) 7 SCC 482 , wherein the Hon'ble Supreme Court has made it clear that it is the duty of the Hon'ble Court to protect the properties of public temple.

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As regards public temple, it is clearly a religious institution. In this regard one has to remind oneself about the definitions of religious institution and temple in Sections 6(18) and 6(20) respectively of TN HR&CE Act which read as follows:

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'6. Definitions.- In this Act, unless the context otherwise requires,

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(1) to (17) ..................................

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(18) "Religious institution" means a math, temple or specific endowment and includes,:-

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(19)......

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(20) "temple" means a place by whatever designation known, used as a place of public religious worship, and dedicated to, or for the benefit of, or used as of right by, the Hindu community or of any section thereof, as a place of public religious worship;'

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The above has to be read in conjunction with Section 1(3) of the TN HR&CE Act. TN HR&CE Dept. received the assent of the President on 19.11.1959 and it was published in the Government Gazette on 02.12.1959. On and from this appointed date by operation of the Statute more particularly, Section 1(3) of TN HR&CE Act, all public temples come under the sweep of TN HR&CE Act and obviously under TN HR&CE Dept. Parens patriae jurisdiction is beyond any pale of doubt.

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There is a reference to 23 acres of land. Though this Court refrains itself from expressing any opinion owing to material in this regard not being before this Court but there is a clear reference to the same in the earlier order. Even with regard to the order in W.P.(MD)No.8931 of 2010 (order dated 12.04.2019) it is clear that there are lands that have been endowed. The issue appears to be whether the lands were endowed simpliciter or service inams. Be that as it may, that there are certain properties qua said temple which need to be safeguarded one way or the other is clear as a crystal . This Court has not expressed any view or opinion on the rights of the writ petitioner and co-Poosaries of the said temple qua such lands but it is clear as day light that lands have been endowed.

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Reverting to the question of Trustee Cum Poosari and Poosari, this Court reminds itself that there are two sets of Rules which are important. One is the 'Tamil Nadu Hindu Religious Institutions (Officers and Servants) Rules 1964' [hereinafter 'service Rules' for the sake of convenience and clarity] and the other is 'The Punishment of Office-Holders and Servants of Religious Institutions (other than Maths and Specific endowments attached thereto) Rules' [hereinafter 'punishment Rules' for the sake of convenience and clarity]. Both these sets of rules are subordinate legislations which have been made by the Government in exercise of Rule making power under Section 116 of TN HR&CE Act. In and by service Rules and more particularly Sections 1 and 2 thereat it is very clear that Possari is a Ulthurai Servant. If the poosari is a Ulthurai Servant, the punishment Rules would apply and in the case on hand the impugned order is obviously under Rule 4 of the https://hcservices.ecourts.gov.in/hcservices/

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punishment rules. Therefore, besides the judicial order referred to above the scheme of the Statute and the subordinate legislation also put it beyond any pale of doubt that the suspension order has been made well within the legal perimeter of the TN HR&CE Act and the Rules thereunder which are of subordinate legislations.

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Owing to the period of Trust board having elapsed and owing to the writ petitioner being Poosari, there is clearly a vacuum qua administration of said temple. In this regard it is necessary to have a look at Section 6(9), 6(11) and 6(22), which define Executive Officer, Hereditary Trustee, Trustee respectively and the same read as follows:

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'6. Definitions.- In this Act, unless the context otherwise requires,

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(1) to (8) ..................................

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(9) “Executive officer” means a person who is appointed to exercise such powers and discharge such duties appertaining to the administration of a religious institution as are assigned to him by or under this Act or the rules made thereunder or by any scheme settled or deemed to have been settled under this Act;

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(10) ................

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(11) “hereditary trustee” means the trustee of a religious institution, the succession to whose office devolves by hereditary right or is regulated by usage or is specifically provided for by the founder, so long as such scheme of succession is in force;

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(22) “trustee” means any person or body by whatever designation known in whom or in which the administration of a religious institution is vested and includes any person or body who or which is liable as if such person or body were a trustee;'

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To be noted, Fit person has not been defined but a conjoint reading of the aforementioned three provisions make it clear that Fit person also is a Trustee. As this Court is exercising parens patriae jurisdiction, conscious of the fact that the captioned writ petition is a challenge to the impugned order, which is a temporary suspension, this Court deems it appropriate to make a comprehensive order to give a complete quietus to the matter so that the administration of the said temple is streamlined and also the properties endowed (be it service inam or endowment qua deity) are all adequately protected. This approach is adopted owing to parens patriae jurisdiction qua said temple and by drawing inspiration from A.A.Gopalkrishnan's principle supra.

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The following order is passed:

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a) Depending on whether the said temple is a nonlisted temple or a listed temple a Fit person shall be appointed forthwith by the appropriate authority either under Section 49 or Section 47 of TN HR&CE Act within a fortnight from today i.e., on or before 04.02.2022;

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b) the Fit person so appointed will obviously become a Trustee in the light of definitions of Executive Officer, Hereditary Trustee and Ttrustee in Sections 6(9), 6(11) and 6(22) of TN HR&CE Act. This Trustee (Fit Person) shall forthwith embark upon the exercise of examining the explanation of the writ petitioner qua SCN dated 15.07.2011 and conclude the proceedings as expeditiously as his/her business would permit but in any event within six weeks from 04.02.2022 i.e., on or before 18.03.2022;

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c) the proceedings before the first respondent initiated in 2011 assailing the SCN dated 15.07.2011 SCN and also seeking stay of the impugned order will now stand terminated;

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d) O.A.No.13 of 2010 said to have been filed under Section 63(b) of TN HR&CE Act and said to be pending on the file of the first respondent shall be adjudicated upon in accordance with Chapter V quasi judicial inquiry proceedings as expeditiously as the business of the first respondent would permit and in any event within three months from today i.e., on or before 28.04.2022.

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The above order has been made with the intention of giving complete quietus to all simmering issues and also for streamlining the administration of said temple. It also douses the anxiety of the writ petitioner qua prolonged suspension.

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Captioned writ petition is disposed of with the aforesaid directives. Consequently captioned WMP is disposed of as closed. There shall be no order as to costs.

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Sd/-

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// True Copy //

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/ /2022 Sub Assistant Registrar(CS)

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Note :

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In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate / litigant concerned.

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1.The Joint Commissioner, Hindu Religious and Charitable Endowments Administration Department, Trichy.

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2.The Managing Trustee, Arulmighu Vanniamman Temple Minnampalli, Karur Taluk, Allied Ganesan, Allied Textiles & Dyeings, Vengamedu, Kamadenu Nagar, Pugalur Road,Karur District.

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+1 CC to M/s.SPL.GP ( SR-2377[F] dated 25/01/2022 )

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W.P(MD)No.21964 of 2016 and W.M.P.(MD)No.15700 of 2016 21.01.2022

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RK(10/02/2022) 12P 4C

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