Madras High Court
P.Vijayan vs The Commissioner on 6 December, 2021
W.P. No.17267 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 06.12.2021
CORAM
THE HONOURABLE MR.JUSTICE R.SURESH KUMAR
W.P. No.17267 of 2016 and
W.M.P.Nos.14745 & 14746 of 2016
P.Vijayan ... Petitioner
Vs
1.The Commissioner,
The Hindu Religious and Charitable Endowments Department,
Nungambakkam,
Chennai - 600 034.
2.The Assistant Commissioner,
The Hindu Religious and Charitable Endowments Department,
Nungambakkam,
Chennai - 600 034.
3.The Administrative Officer,
Arul Migu Varadharaja Manavala Magaamuni Temple,
No.38, Varadha Muthaippan Street,
Chennai - 600 001. ... Respondents
PRAYER : Petition filed under Article 226 of the Constitution of India,
praying for issuance of Writ of Certiorari calling for the records of the
3rd respondent pertaining to his impugned order dated 27.04.2016 and
quash the same.
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W.P. No.17267 of 2016
For Petitioner : Mr.Muthumani Doraisamy
Senior Counsel
Mr.Sankar Ramasamy
For Respondents : Mr.T.Chezhian
Addl. Government Pleader (for R1 & R2)
ORDER
The prayer sought for herein is for a writ of certiorari calling for
the records of the 3rd respondent pertaining to the impugned order dated
27.04.2016 and quash the same.
2. The petitioner claimed that, insofar as the temple called
Patchaiamman Mannatheeswarar Thirukoil located at Acharappan Street,
Chennai 600 001, he is a hereditary trustee. In this regard, it is the further
case of the petitioner that, there has been a judgment and decree passed
by the City Civil Court, Chennai dated 17.12.1966 recognising the
petitioner as a hereditary trustee and that order has reached the finality
and therefore, the petitioner, being the hereditary trustee, cannot be
shaked from the trusteeship without the procedure contemplated under
the H.R. & C.E. Act by the H.R. & C.E. Department.
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W.P. No.17267 of 2016
3. In this context, it is to be noted that, on 29.06.2014 the H.R. &
C.E. Department appointed the 3rd respondent as the fit person of the
temple concerned, where, the petitioner claimed to be the hereditary
trustee followed by further communication dated 19.06.2015.
4. In the said communication dated 19.06.2015, the H.R. & C.E.
Department directed the petitioner to hand over the charge of the temple
concerned to the fit person i.e., the 3rd respondent, who was appointed
so. Before issuing that proceedings dated 19.06.2015, since no notice
was given to the petitioner and there has been no allegation, according to
the petitioner, against the petitioner, the said communication dated
19.06.2015 ought not to have been issued. Therefore, on that ground, he
challenged the same by filing the writ petition in W.P.No.21549 of 2015.
The said writ petition was partly allowed by the orders of this Court
dated 23.07.2015,where, inter alia, the Court has stated the following:
"8. As rightly pointed out by the learned counsel
appearing for the petitioner, a suit in O.S.No.2872 of 1964,
filed by his grandmother as well as his father, on the file of
the learned VI Assistant City Civil Judge, Chennai, praying
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W.P. No.17267 of 2016
for declaration that they are the hereditary trustees with
consequential prayer to set aside the order passed by the
Commissioner of HR&CE dated 06.07.1964, came to be
decreed on 5 17.12.1966 and the challenge made to the said
judgment and decree in the form of an appeal in A.S.No.359
of 1967 was also dismissed on 14.10.1971 and it has
become final.
9. Though, it is contended by the learned Government
Advocate (HR&CE), that a separate application is
necessary to declare that the petitioner is a hereditary
trustee of the temple, Section 54 of the Tamilnadu Hindu
Religious and Charitable Endowments Act, does not say so.
However, this Court is not inclined to go into that question
for the present, for the reason that the impugned order, no
where refers to the issuance of the prior notice to the
petitioner pointing out any irregularities and the impugned
order is ex facie in violation of principles of natural justice
and on that sole ground, it warrants interference.
10. In the result, the writ petition is partly allowed
and the impugned order dated 19.06.2015, is set aside and
the matter is once again remanded to the 2nd respondent for
fresh adjudication and the 2nd respondent shall put the
petitioner on notice and after giving him an opportunity for
personal hearing, shall adjudicate the case on 6 merits and
in accordance with law, and pass order as expeditiously as
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W.P. No.17267 of 2016
possible. No costs. Consequently, the connected
Miscellaneous Petitions are closed."
5. Subsequently, the petitioner had never been served any notice as
had been directed by this Court in the order referred to above. However,
all of a sudden on 27.04.2016, the impugned communication has been
issued whereby once again the same stand had been taken by the H.R. &
C.E. Department, under which, the petitioner has been directed to hand
over the charge on 02.05.2016 at 10.00 a.m. to the 3rd respondent.
Aggrieved over the said order and challenging the same, the present writ
petition has been filed with the aforesaid prayer.
6. Heard the learned Senior Counsel appearing for the petitioner,
who pointed out that, insofar as the claim of the petitioner that, he is the
hereditary trustee of the temple concerned, that issue has been concluded
by the judgment and decree of the Civil Court as early as in the year 1966
and the said judgment and decree has become final. When that being so,
since the petitioner continued to be the hereditary trustee of the temple
concerned, the appointment of fit person, as has been claimed by the
H.R. & C.E. Department by invoking Section 49 of the H.R. & C.E. Act,
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W.P. No.17267 of 2016
does not arise.
7. Be that as it may, the learned Senior Counsel would further
contend that, the consequential order earlier passed in this regard dated
19.06.2015 directing the petitioner to hand over the charge when was
questioned, this Court, by the earlier order referred to above, has made it
clear that, the order dated 19.06.2015 is to be set aside because before
which no opportunity was given to the petitioner. Therefore, after having
quashed the same, direction was given to the respondent H.R. & C.E.
Department to issue notice and give an opportunity of personal hearing to
the petitioner, then only further action can be taken.
8. Despite this mandatory direction has been given by this Court in
the earlier order, without having compliance of the same, the present
impugned order since has been passed with the same fashion as that of
the earlier order, the present impugned order also has to face the same
fate, he contended.
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W.P. No.17267 of 2016
9. Per contra, Mr.T.Chezhian, learned Additional Government
Pleader appearing for respondents 1 and 2 has produced a
communication dated 13.05.2016, whereby, already a notice has been
given to the petitioner to produce the 10 years accounts to the respondent
H.R. & C.E. Department on 17.05.2016. Therefore, the said
communication dated 13.05.2016 can be construed as a notice, as has
been directed by this Court and therefore, the said argument advanced by
the learned Senior Counsel cannot be countenanced, he contended.
10. I have considered the said rival submissions made by the
learned counsel appearing for the parties and have perused the materials
placed before this Court.
11. Insofar as the earlier round of litigation is concerned, a clear
direction has been given, which has been quoted herein above, whereby,
it was directed that, the 2nd respondent therein i.e., the Assistant
Commissioner shall put the petitioner on notice and after giving him an
opportunity for personal hearing, shall adjudicate the issue on merits and
in accordance with law and pass orders.
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W.P. No.17267 of 2016
12. When that being the position, such a notice should have been
issued only pertaining to the order earlier passed dated 29.06.2014, under
which, the 3rd respondent was appointed as a fit person to the temple
concerned instead of the petitioner.
13. Moreover, whether the petitioner can be thrown out by
appointing a fit person within the meaning of Section 49 of the H.R. &
C.E. Act itself is a question, as claimed by the learned Senior Counsel
appearing for the petitioner in this regard, because the learned Senior
Counsel pointed out that, there has been a declaratory decree passed by
the Civil Court under which the position of the petitioner as a hereditary
trustee of the temple concerned has already been recognised and that
order also has reached the finality.
14. Be that as it may, that question cannot be gone into and this
issue can also be adjudicated by the petitioner before the 1st and 2nd
respondents. However, for making such an adjudication, an opportunity
of being heard, as directed by this Court in the earlier order, should have
been given to the petitioner, but admittedly such a notice has not been
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W.P. No.17267 of 2016
given except the communication cited by the learned Additional
Government Pleader dated 13.05.2016.
15. After having gone through the said communication dated
13.05.2016, this Court feels that, that cannot be the notice, as has been
directed by this Court in the earlier round of litigation, the reason being
that, what is the subject matter in the said communication dated
13.05.2016 reads thus:
"brd;id. Mr;rhug;gd; bjU. mUs;kpF gr;irak;kd; kd;dhjP!;tuh;
jpUf;nfhapy; ,e;J rka mwepiyaj; Jiw MSifapd; fPH; cs;s
brd;id cjtp Mizah; rufj;jpw;F cl;gl;l gl;oaypy; nruhj
jpUf;nfhapyhFk;/
nkw;go bghUs; bjhlh;ghf 17/05/2016 md;W gpw;gfy;
11/00 kzpastpy; E';fk;ghf;fk;. 119. cj;jkh; fhe;jp rhiy. ,e;J rka
mwepiyaj; Jiw. brd;id cjtp Mizah; mYtyfk;. cjtp Mizah;
Kd;dpiyapy; eilbgWk; tprhuizf;F M$uhFkhW nkw;go
jpUf;nfhapy; eph;thfpfs; nfl;Lf;bfhs;sg;gLfpwhh;fs;/ nkw;go
tprhuizapd;nghJ. jpUf;nfhapy; 10 Mz;LfSf;fhd tut[ bryt[
fzf;Ffs; tptuk;. jpUf;nfhapy; eph;thfk; bjhlh;ghd midj;J
Mtz';fSld; M$uhfg; gzpf;fg;gLfpwhh;fs;/"
16. Therefore, this position cannot be disputed by the respondents
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and hence, this Court has no hesitation to hold that the earlier mandatory
direction given by this Court since has not been complied with, for the
said reason alone, the present impugned order cannot be sustained,
therefore, it is liable to be interfered with.
17. In the result, the impugned order is quashed. The matter is
remitted back once again to the 1st and 2nd respondents for redoing the
exercise, under which, the clear notice shall be given pursuant to the
order dated 29.06.2014 to the petitioner by registered post with
acknowledgement due to the address mentioned by the petitioner in the
writ petition i.e., No.4, Anumantharayan Lane, Acharappan Street,
Chennai - 600 001. After ensuring that the notice to be sent in this regard
reached the petitioner and an acknowledgement is received from the
petitioner, on the date mentioned in the notice if the petitioner appears
and gives whatever the input including the objection to be raised in this
regard that, since he is the hereditary trustee hence Section 49 cannot be
invoked to unseat the petitioner from the hereditaryship by appointing
the 3rd respondent as a fit person and other input to be supplied shall be
taken into account, accordingly a decision shall be taken by the 1st and
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W.P. No.17267 of 2016
2nd respondents. The aforesaid exercise can be undertaken by the 1st and
2nd respondents as expeditiously as possible.
18. With these directions, this Writ Petition is ordered accordingly.
However, there shall be no order as to costs. Consequently, connected
miscellaneous petition are closed.
06.12.2021
Index: Yes / No
Speaking Order: Yes / No
Sgl
To
1.The Commissioner,
The Hindu Religious and Charitable Endowments Department,
Nungambakkam, Chennai - 600 034.
2.The Assistant Commissioner,
The Hindu Religious and Charitable Endowments Department,
Nungambakkam, Chennai - 600 034.
3.The Administrative Officer,
Arul Migu Varadharaja Manavala Magaamuni Temple,
No.38, Varadha Muthaippan Street,
Chennai - 600 001.
4.The Government Advocate,
High Court, Madras.
R. SURESH KUMAR, J.
Sgl
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W.P. No.17267 of 2016
W.P. No.17267 of 2016
06.12.2021
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