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Commissioner, Hindu Religious and Charitable Endowments (Administration) Department, Madras Vs. K. JothiramalingaIn and anr. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtChennai High Court
Decided On
Case NumberW.A. No. 458 of 1978
Judge
Reported inAIR1985Mad341
ActsTamilNadu Hindu Religious and Charitable Endowments Act, 1959 - Sections 45 (1)
AppellantCommissioner, Hindu Religious and Charitable Endowments (Administration) Department, Madras
RespondentK. JothiramalingaIn and anr.
Appellant AdvocateC. Chinnaswami, Spl. Govt. Pleader
Respondent AdvocateW.C. Thiruvengadam, Adv.
Cases ReferredNagarajan v. Commr. H. R. and C. E.
Excerpt:
.....endowments act, 1959 - appeal against order quashing proceedings relating to appointment of executive officer under section 45 (1) - power vested in commissioner under section 45 (1) being drastic one has to be exercised cautiously, reasonably and fairly - before appointment of executive officer notice to hereditary trustee essential - in absence of mismanagement or maladministration appointment of executive officer should not be done - while exercising power under section 45 (1) commissioner cannot displace hereditary trustee who efficiently manage and administer institution in their charge - appeal dismissed. - - 1-6-1976, for the appointment of an executive officer, on the ground that such appointment will pave the way for the better administration of the temple and the..........p. 2907 of 1976 quashing the proceedings initiated by the commissioner for the appointment of an executive officer in arulmigu kalivaradarajar temple, kumarakuppam, valavanur village, villupuram taluk, south arcot dist., in the exercise of the powers vested in him under s. 45(l) of the hindu religious and charitable endowments act 1959 (tamil nadu act 22 of 1954) (hereinafter referred to as 'the act'). 2. the circumstances giving rise to the appeal may be shortly stated. the respondent herein is the hereditary trustee of arulmigu kalivaradarajar temple, 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, he had been in his capacity as such hereditary trustee submitting budgets, dhittam, maintaining relevant.....
Judgment:

Ratnam, J.

1. This appeal at the instance of the Commissioner, Hindu Religious and Charitable Endowments (Administration) Department, Madras (hereinafter referred to as 'the Commissioner') is directed against the order in W. P. 2907 of 1976 quashing the proceedings initiated by the Commissioner for the appointment of an Executive Officer in Arulmigu Kalivaradarajar Temple, Kumarakuppam, Valavanur village, Villupuram Taluk, South Arcot Dist., in the exercise of the powers vested in him under S. 45(l) of the Hindu Religious and Charitable Endowments Act 1959 (Tamil Nadu Act 22 of 1954) (hereinafter referred to as 'the Act').

2. The circumstances giving rise to the appeal may be shortly stated. The respondent herein is the hereditary trustee of Arulmigu Kalivaradarajar Temple, 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, he had been in his capacity as such hereditary trustee submitting budgets, dhittam, maintaining relevant statutory registers, as contemplated under the provisions of the Act, which had been duly approved by the appropriate authority and had been looking after the administration and management of the temple and maintaining its accounts, which had also been duly audited by the appropriate authorities under the Act. While matters stood thus, proceedings were initiated by the Assistant Commissioner, Hindu Religious and Charitable Endowments (Administration), Department, Cuddalore, to associate nonhereditary trustees with the respondent under S. 49 read with S. 47(2) of the Act, on certain grounds. Though the respondent submitted his objections, without affording any opportunity to him, the Assistant Commissioner called for applications for the appointment of non-hereditary trustees, which led to the filing of R. P. 242 of 1974,. by the respondent and his obtaining stay of the notification calling for applications for appointment as non-hereditary trustees. Ignoring the orders secured by the respondent, the Assistant Commissioner, Hindu Religious and Charitable (Administration) department, Cuddalore, proceeded to appoint two nonhereditary trustees to be associated with the respondent and that led to the filing of another application by the respondent in R. P. No. 41 of 1975 before the Commissioner, wherein 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 had not been, given an 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(l) of the Act, initiated proceedings in R.C. No. 39086/E3/76 dt. 1-6-1976, for the appointment of an Executive Officer, on the ground that such appointment will pave the way for the better administration of the temple and the Executive Officer of Arulmigu Nagamman temple, Thumbur, Villupuram taluk, was appointed as Executive - Officer, for Arulmigu Kalivaradarajar temple, Kumarakuppam, Villupurarn taluk, as well.

3. In W. P. 2907 of 1976 filed by the respondent herein, he prayed for the issue of a writ of certiorari calling for the records of the proceedings of the Commissioner in R. C. No. 39086/E3/76 dt. 1-6-1976, and quash the same on the ground that the Commissioner had, without reference to any acts of mismanagement of the institution by the respondent, proceeded to interfere with the management and administration of the institution by the respondent in his capacity as the hereditary trustee thereof without giving any notice, opportunity or even holding an enquiry as to the need for the appointment of such an Executive Officer and further that S. 45 of the Act conferred an arbitrary, unguided and naked power on the Commissioner in that he could appoint an .Executive Officer in respect of any temple, though such a temple was under the able and efficient management of the hereditary trustee, without giving him an opportunity.

4. In the counter filed by the Commissioner, the appointment of an Executive Officer was sought to be justified on the ground that it was in the course of implementation of a general policy to appoint Executive Officers for all important temples with a view to tone up and secure a better administration of such temples and that there was no need in that connection to issue any notice at all to the person holding the office of the hereditary trustee as it was not property. The Commissioner maintained that the position and status of the respondent as a hereditary trustee was preserved intact and he was not dislodged and that the order passed by the Commissioner did not offend any of the principles of natural justice.

5. Relying on the decision of the Division Bench of this Court in Nagarajan v. Commr., H.R. and C.E. (Administration) : AIR1971Mad295 , the learned Judge, after noticing some other decisions as well, held that before passing an order under S. 45(l) of the Act, the issue of a notice is essential and that in the absence of a prima facie of mismanagement or maladministration, the appointment of an Executive Officer should not be done and issued a writ as prayed for by the respondent, quashing the proceedings of the Commissioner in R. C. No. 39O86/E3/76 dt. 1-6-1976 appointing an Executive Officer in respect of the temple in question. The correctness of that order is challenged by the Commissioner in this appeal.

6. It was contended on behalf of the Commissioner, that the office of the hereditary trustee is not property, as the position of a hereditary trustee is only that of a mere manager or custodian of an institution or endowment and in no case he can claim proprietary or beneficial interest either in the corpus or in the usufruct of the institution and no notice need, therefore, be given to him. Reliance in this connection was placed upon the decision of the Supreme Court in Kakinada Annadana Samajam. v. Commr. - of H.R. and C.E. : [1971]2SCR878 . The question whether the right of hereditary trusteeship, as we have in this case, would be property, was not mooted out at all before the learned Judge. We are of the view that it is unnecessary to embark upon a consideration of that point inasmuch as the question that arises for decision in this writ appeal relates to the need or requirement to issue a notice to the hereditary trustee, before proceedings are taken by the Commissioner under S. 45(l) of the Act and that question did not arise in the decision of the Supreme Court referred to earlier. Apart from this, there is no material to show that the respondent was not entitled to any emoluments or other privileges while holding office as hereditary trustee and in such a state of affairs, it cannot be held that the right projected by the respondent as hereditary trustee is not property and, therefore, he could, without more, be dislodged from such office by a fiat of the Commissioner. Even on the footing that the office of the hereditary trustee is not property, yet, before such a person as an hereditary trustee in actual control, management and day to day administration of an institution is displaced, principles of natural justice require that he should be given an opportunity to show cause against the appointment of an Executive Officer under S. 45(l) of the Act, resulting virtually in his displacement.

7. In Dorairaja Chettiar v. Commr., H.R. and C.E. W. P. No. 683 of 1970, dated 17-61971, Palaniswamy J. in considering the question whether notice under S. 45(l) of the Act should be issued to the hereditary trustee before the appointment of an Executive Officer in the exercise of the powers there under by the Commissioner pointed out that such trustee may maintain the affairs of the temple properly ,and efficiently and to appoint an Executive Officer to such a temple would be improper and even unnecessary and further that despite the ability of the trustees in the matter of administration there might still be scope for improvement in administration and the appointment of an Executive Officer may secure a better administration. The learned Judge further emphasised that in cases of improper management it would be necessary for the Commissioner to appoint an Executive Officer and the exercise of such power of appointment depended not upon the whims and, fancies of the Commissioner, but upon a decision arrived at on the facts of each case and on an application of the mind of the Commissioner to the question whether the

appointment of an Executive Officer is necessary in the interest of the institution and such an appointment should also be preceded by the issue of a notice to the hereditary trustee to show cause why an Executive Officer should not be appointed. A Division Bench of this Court in Nagarajan v. Cornmr. H.R. and C.E. (Administration) : AIR1971Mad295 , has considered the very question arising in this writ appeal and it has been laid down in no uncertain terms that notice is necessary to the hereditary trustee

before an order of appointment of and Executive Officer under S. 45(l) of the Act is passed. In the course of that decision, the extraordinary width and plenitude of the powers that can be exercised by the Executive Officer have been referred to and it is pointed out that the power of appointing an Executive Officer is itself a drastic one, which has to be exercised carefully and in cases where grounds existed disclosing that the Institution had not been properly managed by the hereditary trustee. The need to justify the appointment of an Executive Officer, having regard to the method and the manner of the conduct of the affairs of the institution, prior to the making of the appointment, has also been emphasised. While noticing that S. 45(l) of the Act does not contemplate any notice or enquiry, it was pointed out that the power Of the Commissioner to appoint an Executive Officer cannot be exercised by him at his will invading the rights of the hereditary trustee in office. Referring to the earlier decision of a Division Bench in M. E. Appadurai Mudaliar v. Commr., HI.R. and C.E. Madras W.A. No. 101 of 1969 D/- 26-2-1969, it was pointed out that that decision did not take into account the scope and the extent of the power vested in and exercisable by the Executive Off'icer, but had proceeded on the ground that the appointment of an Executive Officer was not by way of punishment and that was not the ,correct perspective or standpoint from which the question should be considered. On a due consideration of the matter, we are of the opinion that the decision in Nagarajan v. Commr. of H.R. and C.E. (Administration) : AIR1971Mad295 would govern this case as well. But since the learned counsel for the appellant relied upon the decision in W.A. 101 of 1969 D/- 26-21969 (M. E. Appadurai Mudaliar v. Commr. of H.R. and C.E. Madras) and even prayed that the matter should be placed before a larger Bench, we are obliged to make a detailed reference to the basis on which it is rested. The limited question, which arose for decision, was, no doubt, with reference to the requirement under S.45 of the Act, of an enquiry as well as a finding, with reference to the acts of maladministration, attributed to the hereditary trustee. But in considering whether the powers under S. 45(l) of the Act can be exercised by the Commissioner, it was held that an enquiry by the Commissioner or a finding arrived at that the hereditary trustee of the temple had not been properly managing the affairs of the temple is irrelevant. However, we find that those aspects have been merely touched upon while dismissing the writ appeal in limine purely from the standpoint of considering the appointment of an Executive Officer under S. 45(l) of the Act, as being in the nature of a punishment imposed on a trustee or his being subjected to some disadvantage. Indeed, there is no reference therein to the infraction and interference with the rights of a hereditary trustee in matters relating to the day to day administration and management of the institution by the appointment of an Executive Officer under S. 45(l) of the Act. That the matter had been viewed and considered as one of infliction of a punishment and the competence of the Commissioner to hear an appeal from an order imposing such punishment or disability, is evident from the following observations therein:-

'If the Commissioner had imposed a punishment, then, certainly, it may be a relevant factor that, in addition to the grounds on which he called for explanation from the trustee, he has added the other grounds for which, apparently, an explanation was not called for. If, as is alleged, there is an enquiry before the Deputy Commissioner for presumed acts of maladministration by the trustee, and, if, that enquiry results in the imposition of any punishment or disability, then the question whether the Commissioner could properly here and appeal from any such order, because of his present action or the views that he has now expressed, may be a question that arises for consideration of this Court in writ jurisdiction.'

These observations clearly point out that the extent to which the wide powers of an Executive Officer appointed under S. 45(l) of the Act would interfere with the day to day administration and management of the institution by, the hereditary trustee has not been adverted to. Ordinarily, in the case of hereditary Trustee in charge of an institution, he is clothed with plenary powers in the matter of the management as well as the administration of the temple in that he would be entitled to possession of all the properties and movables of the institution, to receive the income in cash and kind and in the shape of offerings, to make disbursements and incur expenditure, to draw up a budget, to exercise control over all office holders and servants and be in charge of the temple and responsible for the maintenance of the records, accounts, and registers, to see to the supply of provisions and stores and check the same and to see to the performance of the pooja festivals and other services, according to the usage and dhittam, to bring actions on behalf of the institution arid represent the institution in actions brought against it and to allot work to the office holders and servants, etc. By the appointment of an Executive Officer under S. 45(l) of the Act, coupled with the conferment on him of all or almost all of the above powers, would be to relegate the hereditary trustee to the position of a nonentity. We ought not to be understood as saying that the Commissioner cannot exercise his powers under S. 45(l) of the Act, in a case, where the institution is under the administration and management of a hereditary trustee. No doubt, the power under S. 45 of the Act can be and has also to be exercised by the Commissioner appropriately in such case. The power vested in the Commissioner under S. 45(1) of the Act, being a very drastic one, it has to be exercised cautiously, reasonably and fairly as the exercise of such power may even result in the effective elimination of the hereditary trustee from management and administration of the institution. Therefore, it is that natural justice and fair play require that the Commissioner should properly exercise the power under S. 45(l) of the Act, after being satisfied that the institution has not been properly managed and the then administration leaves much to be desired and requires to be toned up or improved and the appointment of an Executive

Officer is justified to secure such better administration. This can be done only after communication to the hereditary trustee of the reasons, which, according to the Commissioner, justified the appointment of an Executive Officer and after calling for an explanation from him with reference to the irregularities and maladministration and after considering the same. If after adhering to these requirements, the Commissioner still find that the interests of the institution would be served better only by the appointment of an Executive Officer, he may properly exercise the power under S. 45(l) of the Act. Though S. 45(l) of the Act, by its terms does not contemplate any notice or enquiry, it does not mean that the Commissioner, while exercising powers thereunder, can displace a hereditary trustee at his will and pleasure, throwing out even such hereditary trustees, who efficiently manage and administer the institution in their charge. We, therefore, agree with the decision in Nagarajan v. Commr. H. R. and C. E. (Administration) : AIR1971Mad295 , which dissents from the decision in M. E., Appadurai Mudaliar v. Commr., H, R. and C. E. Madras, W. A. 101 of 1969 dated 2,5-2-1969, and has held the field all these years without its correctness having been doubted by any other decision of this Court. We may also add that the learned counsel for the appellant has not pointed out how the decision of the Division Bench in Nagarajan v. Commr. H. R. and C. E. (Administration) : AIR1971Mad295 , is either inapplicable to this case or otherwise requires to be re-considered. We may also point out that the decisions in G. Ramachandran v. Commr. H. R. and C. E. Madras, W. P. No. 4869 of 1968, and A. K. Parvathammal v. Commr., H. R. and C. E. Madras, W. P. No. 5215 of 1976, holding that no notice to the hereditary trustee is necessary prior to the taking of action by the Commissioner under S. 45(l) of the Act proceed on the basis of the decision in M. E. Appadurai Mudaliar v. Commr. H. R. and C. E. Madras, W. A. 101 of 1969, dt. 26-2-1969 and were decided at a time when the decision in Nagarajan v. Commr. 11. R., and C. E. (Administration), : AIR1971Mad295 was unavailable and those decisions cannot, therefore, be considered to have been rightly decided. The reliance placed by the learned counsel for the respondent upon S. D. G. Pandarasannadhi v. Madras State, AIR 1965 SC 1683 is of no, assistance to him; for, that decision was rendered on the basis and the circumstances which obtained 1951, at a time when S. 45 of the Act was not there on the statute book. We are, therefore, clearly of the view, that the decision in Nagarajan v. Commr. H. R. and C. E. (Administration) : AIR1971Mad295 would govern this case. There igno dispute here that the Commissioner exercised his powers under S. 45(l) of the Act by straightway appointing an Executive Officer without issuing a notice to the respondent herein and after giving him an opportunity to show cause against such appointment. Under those circumstances, the order of the Commissioner deserved to be quashed and was rightly quashed also by the learned Judge. No case for interference with that order is made out. We, therefore, dismiss the writ appeal with the costs of the respondent.

8. Appeal dismissed


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