1. The appellant, as he claims, is a hereditary trustee of Sri Kasiviswanathaswami and Sri Lakshminarayanaswami temples, Agarachai, Nannilam Taluk. By proceedings of the Commissioner, Hindu Religious and Charitable Endowments (Administration) dated 30-8-1969, he listed certain irregularities and informs the appellant that in view of them, the affairs of the temples were being mismanaged, and that the appellant failed to obtain budget sanction contrary to Section 86 of the Hindu Religious and Charitable Endowments Act, to submit the income and expenditure statements as required by Sections 92 and 94, to get the accounts of the temples audited from faslis 1358 to 1377 and to pay the contribution and audit fees for faslis 1373 to 1377. It was also alleged that he failed to produce the accounts of the temples for check before the Assistant Commissioner on the specified dates. The Commissioner, therefore, appointed, in exercise of his powers under Section 45(1) an executive officer for the temples who would be common to them and three other temples. Aggrieved by this order, the appellant moved under Art. 226 of the Constitution but without success. This appeal is now before us.
2. We find from the appendix to the order appointing an executive officer that the appellant as a hereditary trustee has been deprived of almost all his powers of administration of the temples, except that formally he would be entitled to possession of all immoveable properties and moveables, livestock and grains. The Executive Officer would be the person to receive all income in cash and kind and all offerings and he would be the person to make disbursements and incur all expenditure on behalf of the temples. He was draw up a rough estimate of the probable disbursements and expenses to be made and incurred and obtain the previous sanction of the trustee. The receipts were to be deposited by the executive officer in the account of the temple. He is empowered to have control over all the office holders and servants of the temples, and he would have the powers of superintendence, though subject to the disciplinary control of the trustees. He shall be in charge of the office of the temples, responsible for the proper maintenance of all records, accounts and registers and for the due submission to the appropriate authorities of the budget reports, accounts, statutory returns and other information. He is the one responsible for collection of all income and moneys due to the institution in proper time and for safeguarding the interests of the institution. It is his duty to see that all provisions and stores are supplied to the intended purposes and he is to check at frequent intervals that they are supplied for use according to the dhittam. The duty of the executive officer included to see that puja, festivals and other services are performed according to the usage and dhittam. He is also the person entitled to sue and be sued on behalf of the temples. The allotment of work to the office holders and servants goes also with him. It may be seen that by appointing an executive officer with such powers the hereditary trustee is reduced to a non-entity as it were. The power under Section 45 to appoint an executive officer may no doubt be exercised by the Commissioner in proper cases.
The discretion vested in his is to be exercised reasonably and fairly, because the power by its very nature is a drastic one, and appointment of an executive officer is more often than not likely to virtually eliminate a hereditary trustee. It is now well settled that hereditary trusteeship is property and as such it is entitled to protection. It is in view of this that the procedure in Section 47 has been provided that where non-hereditary trustees are to be appointed along with the hereditary trustees, the appointment should be preceded by such enquiry as the Commissioner may deem adequate and he could make the appointment only if he considered there were reasons therefor which should be recorded. The reasons should suggest that the institution concerned are not likely to be managed properly by the hereditary trustee. The interposition of an executive officer may in some respects be regarded as even more drastic than the appointment of a non-hereditary trustee, more especially as the Executive Officer is vested with sweeping powers such as in the instant case, which deprive the hereditary trusteeship of its subsistence.
3. In our opinion, such a power, drastic as it is, has to be exercised carefully and only where proper reasons existed showing that the temple or the math concerned has not been properly managed by the hereditary trustee. The power under Section 45(1) does not mean that the Commissioner, if he so wills, though there is no reason whatever justifying can exercise the power and appoint and Executive Officer for a religious institution. We consider, therefore, that before making the appointment he must inform the hereditary trustee of the reasons, which according to him, would justify the appointment of an Executive Officer, ask for his explanation and after considering the same if he still thinks than an executive officer is necessary, he may properly exercise his power. It is true that Section 45 does not contemplate any notice or enquiry, but that does not mean that by exercising power under Section 45 at will the Commissioner can invade the hereditary trusteeship which is property as he has done in this case. As a matter of fact, in this case the Commissioner listed certain irregularities but hardly waited to enquire of the appellant for his explanation. We are told that the Assistant Commissioner has given a date for the production of accounts; even before the expiry of that date, the Commissioner chose to make the appointment of an Executive Officer. We are satisfied that this is not a proper exercise of the power.
4. Apparently the Commissioner in making the impugned order was guided by the view expressed by this court in a writ petition that no notice was required as a condition to the appointment of an executive officer, and the view in a writ appeal, which was dismissed is limine, that no procedure being contemplated by Section 45, no interference with the appointment of executive officer in that case was called for. We must express our respectful dissent. So far as the order in the writ appeal in concerned, it does not appear that the learned Judges had before them the extent of the power vested in the executive officer. They appear to think that appointment of an Executive Officer was not by way of a punishment. That may be so. But that is not the correct standpoint, if we may say so with respect, from which the question could be considered. As we said the approach would be as contained in Section 47 and from the standpoint of the hereditary trusteeship being property, the invasion of which can be justified only on reasonable and proper grounds.
5. The appeal is allowed; but with no costs.
6. Appeal allowed.