Madras High Court
K.Kumaraguruparan vs The Joint Commissioner on 7 December, 2021
WP(MD) No.20561 of 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 07.12.2021
CORAM
THE HON'BLE MR. JUSTICE M.SUNDAR
W.P(MD)No.20561 of 2014
and
M.P.(MD)No.1 of 2014
K.Kumaraguruparan ... Petitioner
Vs.
1.The Joint Commissioner,
Tamil Nadu Hindu Religious and
Charitable Endowment Department,
Trivandrum Road,
Palayamkottai,
Tirunelveli District.
2.The Assistant Commissioner,
Tamil Nadu Hindu Religious and
Charitable Endowment Department,
South High Ground Road,
Palayamkottai,
Tirunelveli – 1.
3.The Fit Person (Executive Officer,
Arulmigu Kailasanathar Thirukoil),
Arulmigu Mutharamman (North) Thirukovil,
Palayamkottai,
Tirunelveli District. ... Respondents
1/20
https://www.mhc.tn.gov.in/judis
WP(MD) No.20561 of 2014
PRAYER: Petition filed under Article 226 of the Constitution of India, for
the issuance of a Writ of Certiorari, calling for the records relating to the
impugned order passed by the 2nd respondent in his proceedings
Se.Mu.Na.Ka.No.134/2013/E1 dated 25.11.2014 and quash the same.
For Petitioner : Mr.S.Meenakshisundaran,
Senior Counsel for
Mr.R.Manimaran
For Respondents : Mr.M.Lingadurai,
Special Govt. Pleader for R1 & R2
No Appearance for R3
ORDER
In the captioned main writ petition, an 'order dated 25.11.2014
bearing reference nr.K.e.f.vz;.134/2013/E1 made by the second
respondent' (hereinafter 'impugned order' for the sake of convenience and
clarity) has been assailed.
2. In and by the impugned order, a Fit person has been appointed for
'Arulmigu North Mutharamman Thirukoil, Palayamkottai Town and Taluk,
Tirunelveli District' (hereinafter 'said temple' for the sake of convenience
https://www.mhc.tn.gov.in/judis
WP(MD) No.20561 of 2014
and clarity). To be noted, appointment of Fit person has been made vide the
impugned order under Section 49(1) of 'The Tamil Nadu Religious and
Charitable Endowments Act, 1959 (Tamil Nadu Act 22 of
1959)' (hereinafter 'TN HR&CE Act' for the sake of convenience and
clarity) and Executive Officer of another public temple viz.,
Kailasanathaswamy Temple situate in Tirunelveli Junction has been
appointed as Fit person.
3. In one week from now, the captioned main writ petition will be
seven years old in this Court as it has been filed on 15.12.2014. On
17.12.2014, an interim order has been made in captioned WMP and the
order made by Hon'ble Predecessor Judge reads as follows:
'Interim stay. Notice'
4. This Court is informed that aforementioned interim order is
operating. It is also to be noted that interim stay is stay of the operation of
impugned order.
https://www.mhc.tn.gov.in/judis
WP(MD) No.20561 of 2014
5. The writ petitioner, claiming that he is Managing Trustee of said
temple has filed the captioned writ petition saying that said temple is
established, administered and maintained by a particular community
residing in and around Palayamkottai. Before proceeding further, I need to
record that there is no disputation or disagreement before me that there is no
decree, declaration or order to the effect that said temple is a
denominational temple. Therefore, the undisputed position is said temple
even as of today is a public temple.
6. The first and second respondents represented by State Counsel
have filed a counter affidavit dated 24.08.2016 and completed pleadings.
The third respondent is the Fit person who has been appointed in and by the
impugned order, the third respondent has been duly served but third
respondent has not chosen to enter appearance through counsel, name and
full / complete address of the third respondent is shown in the cause list but
there is no representation. However, third respondent is only a formal party
he being an appointee qua the impugned order. If the impugned order is
sustained he would proceed and if it is dislodged he would not proceed qua
said temple. Therefore, the absence of third respondent does not make any
https://www.mhc.tn.gov.in/judis
WP(MD) No.20561 of 2014
difference of significance to the captioned main writ petition being heard
out.
7. In his campaign against the impugned order,
Mr.S.Meenakshisundaram, learned Senior Advocate appearing on behalf of
the counsel on record for writ petitioner, notwithstanding very many
averments in the writ affidavit and notwithstanding several grounds raised
in the writ affidavit made three pointed submissions and they are as follows:
1) There is violation of NJP (Natural Justice
Principles) as the writ petitioner has not been put on notice
before the impugned order was made;
2) The impugned order is a non-speaking order as it
does not give any reason for appointment of Fit person; and
3) Two case laws being Sri Devi Ellamman
Paripalana Sangam Vs. The Assistant Commissioner,
Hindu Religious and Charitable Endowments Board,
Chennai and another reported in 2010 (2) CWC 915 and
https://www.mhc.tn.gov.in/judis
WP(MD) No.20561 of 2014
P.R.Thirupathy and others Vs. The Assistant
Commissioner, Hindu Religious and Charitable
Endowment and others reported in (2015) 4 CTC 755 were
pressed into service in support of the aforementioned two
points.
8. Learned State Counsel responded to the aforementioned
submissions and a summation of his response is as follows:
a) adverting to paragraph 4 of the counter affidavit it
was submitted that the writ petitioner was not appointed by
the 'Tamil Nadu Hindu Religious and Charitable
Endowments Department' (hereinafter 'TN HR & CE Dept.')
much less under the TN HR & CE Act;
b) It was also pointed out there are several allegations
regarding administration of said temple including
discrimination amongst worshipers and that has inter-alia
been the trigger for appointment of Fit person. The powers
of second respondent under Section 49(1) are transitory
https://www.mhc.tn.gov.in/judis
WP(MD) No.20561 of 2014
powers and the exercise of powers in this case cannot be
found fault with as it has been done for protecting properties
and interests of said temple;
c) it cannot be gainsaid that the impugned order is a
non-speaking order as the reason for appointment of Fit
person has been mentioned in the impugned order itself and
d) there is no NJP violation as it is only a transitory
provision.
9. By way of reply, learned Senior Counsel reiterated the submissions
made in the opening submission and confirmed that the notification has now
been issued (about three weeks ago) for constitution of the selection
committee for appointment of Trustees for various temples situate in the
territorial jurisdiction in which the said temple is situate.
10. I now proceed to consider the arguments one after the other,
discuss the same and give my dispositive reasoning. I would first deal with
the arguments that the impugned order is a non-speaking order. A careful
https://www.mhc.tn.gov.in/judis
WP(MD) No.20561 of 2014
perusal of the impugned order makes it clear that it has been made for the
purpose of taking care of the movable, immovable properties, hundiyal
metal idols of the said temple and it is also says that it is to protect the metal
idols. Relevant portion of the impugned order reads as follows:
'.............nkw;go jpUf;nfhapypd; mira[k; kw;Wk;
mirah brhj;Jf;fs; cz;;oay; kw;Wk; cnyhf
tpf;fpuf';fis ghJfhf;ft[k;
tut[ bryt[ fzf;Ffs; kw;Wk; md;whl gzpfis
ftdpj;J tut[k; ,e;J rka mwepiyaj;Jiw
rl;lk;; 22/1959 d;go gphpt[ 49(1) d; fPH;
jpUbey;ntyp re;jpg;g[ mUs;kpF ifyhrehjRthkp
jpUf;nfhapy; bray; mYtyiu jf;fuhf epakdk;
bra;Jcj;jutplg;gLfpwJ/'
11. Therefore, the argument that the impugned order is a non-
speaking order is flattened. The impugned order does record reasons. In my
considered view it is terse, epigrammatic and it is not laconic. I also make it
clear that the question as to whether an order under Section 49(1) of TN HR
& CE Act should be a speaking order is left open. Suffice to say that in this
case the impugned order is not a non-speaking order in the light of the
aforementioned portion (extracted and reproduced) of the impugned order.
https://www.mhc.tn.gov.in/judis
WP(MD) No.20561 of 2014
12. This takes us to the next point that turns on NJP. On NJP, I deem
it appropriate to deal with the two case laws, which were pressed into
service. One is P.R.Thirupathy case, where the facts are completely
different. I am able to find at least four distinguishing features/facts. One
is, as captured in paragraph 4 that was a case where non-hereditary trustee
had already been appointed in accordance with TN HR&CE Act. The
second point is (as captured in paragraph 15 thereat) the impugned order
was never served on the writ petitioner. Third distinguishing feature is also
captured in paragraph 15 and that is, the question as to whether the temple
concerned therein is a denominational temple was left open. For this
purpose, I deem it appropriate to extract and reproduce entire paragraph 15
of P.R.Thirupathy case law and the same reads as follows:
'15. It is to be further pointed out that the impugned order
was not communicated to the petitioners and in the counter
affidavit filed by the third respondent, it has been stated that the
copy of the order was also sent to the person in management by
post and it is not necessary to send the same to the Writ
Petitioner stating that they are not trustees as claimed by them.
The averment made in the counter affidavit of the third
respondent is vague, as it does not state the date of despatch
whether it was sent by registered post or not and other details.
Therefore, the contentions of the third respondent that the copy of
https://www.mhc.tn.gov.in/judis
WP(MD) No.20561 of 2014
the order was sent to the person in management by post is held to
be not substantiated. Though the third respondent takes a stand
that the petitioner need not be provided with the copy, it is not
known under what circumstances the signature of the petitioner
and others were obtained by the fit person, when the hundial was
opened on 28.10.2013. The learned Special Government Pleader
appearing for the respondent submitted that though the term of
office of the trustee is over, they are still continuing. In such
circumstances, the petitioners ought to have been heard in the
matter after issuing notice to them, since such procedure had not
been followed, it has to be necessarily held that the impugned
order has been passed in 17 violation of principles of natural
justice. Though the petitioner would contend that the temple is a
denomination temple, established and maintained by the people
belonging to a particular community, the third respondent has
denied the contention and submitted that the H.R.,&C.E.,
department has been appointing non-hereditary trustees
belonging to other community to the temple from time to time
and the trustees are appointed in accordance with the stipulation
under Section 47 of the Act. In the light of the above stand taken
by the parties, this issue cannot be adjudicated in this Writ
Petition and it is for the petitioners to work out their remedies
under the Act in the manner known to law.'
13. Relevant portion of paragraph 4 which deals with non-hereditary
trustees reads as follows:
https://www.mhc.tn.gov.in/judis
WP(MD) No.20561 of 2014
'4.The learned Special Government Pleader appearing
for the respondents 1 to 4, by referring to the counter affidavit
filed by the respondents 3 and 4 submitted that the temple is
receiving financial assistance from the H.R. and C.E.,
Department for pooja to be performed and non-hereditary
trustees were appointed to the said temple by the department
from 1995 onwards and those non-hereditary trustees belong to
various communities. It is further submitted that among the
five non-hereditary trustees, one trustee is a lady and one other
trustee belongs to the Schedule Caste community and these
appointments were made in terms of Section 47 of the Act........'
14. The fourth distinguishing feature is it is not a case where there is
no disputation that there is no declaration or decree that temple concerned is
a denominational temple. In other words as already alluded to supra in the
case on hand, said temple is a public temple. Likewise Sri Devi Ellamman
Paripalana Sangam case is also distinguishable on facts as that is a case
where an application had been made for declaring that the trusteeship of the
office of the temple concerned is hereditary. This is captured in paragraph 8
of that order and the relevant portion reads as follows:
'8..........Though there has been an application for
declaration of the office of trustee of the religious institution to
https://www.mhc.tn.gov.in/judis
WP(MD) No.20561 of 2014
be a hereditary one, no application under Section 63(a) for a
declaration as to whether the temple in question is a religious
institution 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 section thereof was filed......'
15. Going by the narrative, the above may well be a petition under
Section 63(b) and not 63(a). This may be a typographical error. It is not
necessary to delve further into this and it will suffice to say that the two case
laws are clearly distinguishable on facts. In this regard, I remind myself of
the celebrated Padma Sundara Rao case being Padma Sundara Rao Vs.
State of Tamil Nadu case reported in (2002) 3 SCC 533 which was
rendered by a Hon'ble Constitution Bench owing to which it is a declaration
of law and the relevant paragraph in Padma Sundara Rao case law is
paragraph 9 and the same reads as follows:
'9.Courts should not place reliance on decisions without
discussing as to how the factual situation fits in with the fact
situation of the decision on which reliance is placed. There is
always peril in treating the words of a speech or judgment as
though they are words in a legislative enactment, and it is to be
remembered that judicial utterances are made in the setting of the
facts of a particular case, said Lord Morris in Herrington Vs.
https://www.mhc.tn.gov.in/judis
WP(MD) No.20561 of 2014
British Railways Board (1972) 2 WLR 537. Circumstantial
flexibility, one additional or different fact may make a world of
difference between conclusions in two cases.'
16. I have applied the celebrated Padma Sundara Rao declaration of
law to distinguish the aforementioned two case laws. As the
aforementioned two case laws do not apply to the case on hand it does not
help the cause of the writ petitioner and it does not come to the aid of the
writ petitioner in the case on hand. This by itself puts an end to the NJP
argument. In my considered view, Section 49(1) of TN HR & CE Act has to
necessarily be read with Section 47(1)(a) of TN HR&CE Act. A conjoint
and careful reading of Section 49(1) of TN HR&CE Act read with Section
47(1)(a) more particularly second proviso to Section 47(1)(a) makes it clear
that it is a transitory provision and appointment of Fit person under Section
49(1) is pending constitution of board of trustees. In the instant case, as
already alluded to supra, steps in this direction have been taken by the State
as a notification for constitution of the selection panel for selecting the
trustees has already been made about 3 weeks ago.
https://www.mhc.tn.gov.in/judis
WP(MD) No.20561 of 2014
17. I now deal with the argument that the writ petitioner was not
appointed by TN HR&CE Department much less under TN HR&CE Act.
This aspect of the matter will also govern one of the distinguishing features
referred to supra viz., Section 1(3) of TN HR&CE Act read with Section 4
of TN HR&CE Act. TN HR&CE Act in its current form came into force on
and from 19.11.1959 that being the date on which the Presidential assent
was given to the TN HR&CE Act. Section 1 of TN HR & CE Act deals
inter alia with the application of the Act. Sub-section (3) of Section 1
makes it clear that the entire statute applies to all public religious
institutions / endowments including incorporated Dewaswoms and
Unincorporated Dewaswoms. This means, on and from 19.11.1959, the
Statute applies to four different categories of entities viz., a) religious
institutions, b) endowments, c) incorporated Dewaswoms and d) and
Unincorporated Dewaswoms. It is further to be noted that all these four
terms are defined under the Statute. Religious institution is defined in
Section 6(18), endowment (akin to religious endowment) is defined in
Section 6(17) specific endowment which is defined in Section 6(19),
incorporated Dewaswoms is defined in Section 6(12) and unincorporated
Dewaswoms is defined in Section 6(23) which has to be read in conjunction
https://www.mhc.tn.gov.in/judis
WP(MD) No.20561 of 2014
with schedule II. These four provisions reads as follows:
'6. Definitions.- In this Act, unless the context otherwise
requires,
(1) to (11) ..................................
(12)“incorporated Devaswmos” means the Devaswoms
mentioned in schedule-I
..........
..........
(17).........
(18) "Religious institution" means a math, temple or
specific endowment and includes,:-
(19) "specific endowment" means any property, or
money endowed for the performance of any f specific service
or charity in a math or temple, or for the performance of any
other religious charity , bust does not include an inam of the
nature described in Explanation (1) to clause(17)
.............
.............
(22).......
(23)“unincorporated Dewaswmos” means the
Dewaswoms mentioned in schedule-II'
18. The Act by way of an explanation to Section 1(3) makes it clear
that under sub-Section (3) the entities which are excluded from public
religious institutions and endowments are Jain religious institutions and
https://www.mhc.tn.gov.in/judis
WP(MD) No.20561 of 2014
endowments. However, even for this a separate provision viz., Section 2 of
TN HR & CE Act has been made where power has been vested with the
Government to extend TN HR&CE Act to Jain religious institutions and
endowments also. However, with regard to the application of the Act, a
given entity viz., a religious institution, endowment, incorporated
Dewaswoms or unincorporated Dewaswom can be exempted from some or
all the provisions of the statute only by exercise of power by the
Government under Section 4 of TN HR & CE Act which deals with
exemptions. In the case on hand, admittedly there is no such exemption.
Therefore, the said temple is clearly a public temple. Before proceeding
further, I deem it appropriate to make it clear that the definition of religious
institution makes it clear that it includes math, temple and specific
endowment. It may not be necessary to go to the definition of math under
6(13) or specific endowment under 6(19) as that may be outside the realm of
the matter on hand. It is suffice to say that a temple is defined under Section
6(20) and the same reads as follows:
'6. Definitions.- In this Act, unless the context otherwise
requires,
(1) to (19) ...................
(20) "temple" means a place by whatever designation
https://www.mhc.tn.gov.in/judis
WP(MD) No.20561 of 2014
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;'
19. Therefore, a conjoint reading of Sections 6(18) and 6(20) make it
clear that a temple as defined in Section 6(20) of TN HR & CE Act will be a
religious institution and therefore will come within the sweep of sub-section
(3) of Section 1. In other words, temple is a religious institution and
therefore, by virtue of coming under Section 1(3) that would become a
public temple on and from November of 1959, to be precise 19.11.1959
when the TN HR&CE Dept. received the Presidential assent.
20. In this view of the matter, it cannot be gainsaid by any one that a
particular temple has not been brought under the sweep of the Statute. It
may well be possible that in practice or in ground situation, the physical
administration may not have actually been taken over by the authorities
under the TN HR & CE Act but that does not alter the statutory position that
a temple does come under the sweep of TN HR & CE Act. A public temple
per se comes within the sweep of TN HR &CE Act. Therefore, one other
https://www.mhc.tn.gov.in/judis
WP(MD) No.20561 of 2014
argument which was made by referring to proceedings of Commissioner
dated 17.10.2014 and furtherance of this argument that said temple was
brought within the administration (MSif) of the TN HR&CE Dept.,
hardly holds water as it does not fit into the statutory scheme. In this
regard, I also remind myself that this Court has repeatedly held in a catena
of case laws that TN HR&CE Act is a self-contained code.
21. The last of the points which I may have to deal with are the
allegations which have been adverted to in the counter affidavit. Other than
demonstrating that there has been a trigger, it may well not be possible for
the respondent to elaborate and amplify an impugned order by way of a
counter affidavit. Therefore, I deem it appropriate to make it clear that I
have tested the impugned order by applying the statutory scheme of TN HR
& CE Act in the light of the rival contentions that have been advanced
before me.
22. This discussion and dispositive reasoning leads to one inevitable
sequitur and that one sequitur is writ petitioner's campaign against the
impugned order fails. The further sequitur or consequence is captioned writ
https://www.mhc.tn.gov.in/judis
WP(MD) No.20561 of 2014
petition is dismissed. Consequently, captioned WMP is also dismissed.
There shall be no order as to costs.
vsm 07.12.2021
Index : Yes/No
Internet : Yes /No
To
1.The Joint Commissioner,
Tamil Nadu Hindu Religious and
Charitable Endowment Department,
Trivandrum Road,
Palayamkottai,
Tirunelveli District.
2.The Assistant Commissioner,
Tamil Nadu Hindu Religious and
Charitable Endowment Department,
South High Ground Road,
Palayamkottai,
Tirunelveli – 1.
3.The Fit Person (Executive Officer,
Arulmigu Kailasanathar Thirukoil),
Arulmigu Mutharamman (North) Thirukovil,
Palayamkottai,
Tirunelveli District.
https://www.mhc.tn.gov.in/judis
WP(MD) No.20561 of 2014
M.SUNDAR, J.
vsm
W.P(MD) No.20561 of 2014
and M.P.(MD)No.1 of 2014
07.12.2021
https://www.mhc.tn.gov.in/judis
