Madras High Court
The Assistant Commissioner/ vs S.Srinivasa Ragavan ... 1St on 29 June, 2021
W.A.(MD)No.316 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 29.06.2021
CORAM
THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM
AND
THE HONOURABLE MRS.JUSTICE S.ANANTHI
W.A.(MD)No.316 of 2020
and
CMP(MD).Nos.1590 and 4689 of 2021
The Assistant Commissioner/
Executive Officer,
Arulmighu Devarajaswami temple,
Chinnakancheepuram,
Kancheepuram District - 631 501. ... Appellant/2nd Respondent
Vs.
1. S.Srinivasa Ragavan ... 1st Respondent/Petitioner
2. The Commissioner,
Hindu Religious & Charitable Endowments
(Administration) Department,
Uthamar Gandhi Adigal Salai,
Nungambakkam, Chennai - 600 034. ... 2nd Respondent/1st Respondent
Prayer: Writ Appeal filed under Clause 15 of Letters Patent, against the order of
this Court made in W.P.(MD) No.17507 of 2018, dated 26.04.2019.
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For Appellant : Mr.M.Vallinayagam
Senior Counsel
for M/s.M.P.Senthil/
A.Mohamed Haneef
For Respondent : Mr.T.Mohan
for Mr.N.C.Ashok Kumar for R1
Mr.R.Baskaran,
Standing Counsel for R2
JUDGMENT
[Judgment of the Court was delivered by T.S.SIVAGNANAM,J.]
This writ appeal filed by the Assistant Commissioner-Executive
Officer, Arulmighu Devarajaswamy Temple, Chinnakancheepuram,
Kancheepuram District, is directed against the order dated 26.04.2019 in
W.P(MD).No.17507 of 2018, filed by the first respondent herein.
2. The said writ petition was filed by the first respondent herein, for
issuance of a Writ of Certiorarified Mandamus to quash the proceeding dated
21.06.2018, initiated by the second respondent-the Commissioner, Hindu
Religious and Charitable Endowments (Administration) Department (in short
"the Commissioner-HR & CE Department"), Chennai, in suo motu Revision No.
4/2018/D2, as being illegal, unwarranted, without jurisdiction and ultravires
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and for a consequential direction to the appellant before us, to permit the first
respondent-writ petitioner to perform the Archakar service through his
authorized and qualified agent in Arulmighu Devarajasamy Temple
Devasthanam, Chinna Kancheepuram, for the present Vilambi year.
3. The writ petition was pending and it appears that no counter-
affidavit was filed by the appellant, who was the second respondent or the
Commissioner-HR & CE Department, who was the first respondent in the writ
petition. When the matter was heard by the learned Single Bench on
26.04.2019, the learned counsel appearing for the first respondent-writ
petitioner, on instructions from the writ petitioner submitted that the writ
petitioner has undergone a change of heart and he would rather perform the
Archakar duty himself and does not want any substitute to be appointed in his
place. Therefore, the learned Writ Court came to the conclusion that the very
basis on which the impugned communication dated 21.06.2018 rests has
become undermine and accordingly, allowed the writ petition and quashed the
proceedings.
4. The suo motu revision initiated by the Commissioner-HR & CE
Department is to consider the correctness of the order passed by the appellant
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W.A.(MD)No.316 of 2020
dated 04.12.2017, in and by which, the appellant had recognised the request
made by the first respondent-writ petitioner to permit his brother S.Krishnasamy
Bhattar to perform Poojas instead of himself. The present Executive Officer of
the temple one N.Thiyagarajan, has filed the present appeal.
5. We have heard Mr.M.Vallinayagam, learned Senior Counsel
appearing for the appellant and Mr.T.Mohan, learned counsel assisted by
Mr.N.C.Ashok Kumar, learned counsel appearing for the first respondent and
Mr.R.Baskaran, learned Government Counsel appearing for the second
respondent.
6. Firstly, we need to point out that no part of cause of action arose
within the jurisdiction of Madurai Bench of Madras High Court for the writ
petition to be entertained. We say so because, the temple where the alleged
services have to be performed by the first respondent-writ petitioner is in
Kancheepuram District, within the jurisdiction of the Principal Seat of this
Court. The Commissioner-HR & CE Department has Office in Chennai, which
is also within the jurisdiction of the Principal Seat of this Court. The Executive
Officer of the temple obviously functions from Kancheepuram, which is, within
the jurisdiction of the Principal Seat of this Court. Thus, merely because, the
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W.A.(MD)No.316 of 2020
first respondent-writ petitioner was a resident at Trichy, it cannot confer
jurisdiction on this Court to entertain a writ petition. Furthermore, the alleged
services to be performed by the first respondent is admittedly in Kancheepuram
and therefore, no part of cause of action arose within the jurisdiction of this
Court to entertain the writ petition.
7. It is unfortunate that neither the appellant nor the Commissioner-
HR & CE Department, has pointed out this aspect when the writ petition was
heard. The second and more important aspect is that whether the proceedings
dated 18.06.2018 is an order and whether the writ petition is maintainable
against the said proceedings.
8. We have perused the said proceedings and we find that it is only a
notice. The Commissioner-HR & CE Department has exercised his powers
under Section 21 of the Tamil Nadu Hindu Religious and Charitable
Endowments Act, 1959 ('the Act' for brevity), which empowers the
Commissioner to call for and examine the record of any Joint or Deputy or
Assistant Commissioner or any trustee of a religious institution other than a
math or a specific endowment attached to a math in respect of any proceeding
under the Act not being a proceeding, in respect of which a suit or an appeal to a
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W.A.(MD)No.316 of 2020
Court is provided by the Act, or in respect of which an application for revision
has been preferred under section 21-A to the Joint Commissioner or Deputy
Commissioner and is pending disposal by him to satisfy himself as to the
regularity of such proceeding, or the correctness, legality or propriety of any
decision or order passed therein.
9. Sub-section 2 of Section 21 of the Act confers power of the
Commissioner to modify, annul, reverse or remit for re-consideration any such
decision passed by the Joint or Deputy or Assistant Commissioner.
10. Sub-section 5 of Section 21 of the Act mandates that before any
order prejudicial to any party if passed under sub-section (2) or clause (b) or
clause (c) of sub-section (3), or under clause (b) of sub-section (4), a reasonable
opportunity of being heard has to be afforded.
11. Sub-section 6 of Section 21 of the Act grants power to the
Commissioner to stay the execution of any decision or order of the nature
referred to in sub-section (1) or clause (a) of sub-section (4), pending the
exercise of his powers under sub-section (2) or sub-section (3) or under clause
(b) of sub-section (4) in respect thereof.
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12. The Commissioner-HR & CE Department, by the said notice
dated 18.06.2018, has pointed out that the appellant before us has permitted one
S.Krishnasamy Bhattar, to perform the Poojamurai of the writ petitioner in his
proceedings dated 04.12.2017.
13. On perusal of the order, the Commissioner-HR & CE Department
was of the prima facie view that the correctness, legality, propriety of the order
need to be examined and to decide, whether the order in question should be
revised under Section 21(1) of the Act and therefore, deemed it appropriate to
cause an enquiry into the matter by fixing the date of enquiry as 30.07.2018 at
3.00 P.M. The Commissioner is bound to do so, in terms of sub-section 5 of
Section 21 of the Act, as pointed above. Therefore, the Commissioner has stated
that the respondents therein and other persons having interest in the matter are
required to appear either in person or by a duly authorized Advocate at the time,
date and place mentioned. Further, it was informed that in default of
appearance, the matter will be disposed of setting the respondents ex-parte.
14. The following are the three grounds on which the Commissioner-
HR & CE Department was of the prima facie view that he is required to
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exercise his jurisdiction under Section 21(1) of the Act.
"(1) That the Assistant Commissioner/Executive trustee of the above
temple has failed to conduct enquiry before passing the impugned order.
(2) That the order passed by the Assistant Commissioner/Executive
trustee of the temple was against the provision under section 55(2) of the act
which prohibits hereditary succession to any office in the Religious Institution.
(3) That the Assistant Commissioner/Executive trustee has failed to
verify whether the said S.Srinivasa Raghava Bhattar/3rd respondent has
performed poojas previously in the temple."
15. Thus, the proceedings which were impugned in the writ petition is
not an order, but it is a notice, which is in fact a statutory notice issued under
sub-section 5 of Section 21 of the Act and a person aggrieved by the notice is
first bound to respond the notice and place all submissions before the
Commissioner-HR & CE Department.
16. In the said suo motu revision notice, the respondents 3 and 4 are
the writ petitioner and S.Krishnasamy Bhattar. The Commissioner has also
made it clear that other persons having interest in the matter are also require to
appear either in person or through counsel. Thus, the writ petitioner could not
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have impugned the notice dated 18.06.2018, as it is not an order and the rights
of parties had not been decided. Furthermore, assuming the first respondent-writ
petitioner raises a contention that the order passed by the appellant herein, dated
04.12.2017, is fully justified and legal, it would be well open to the first
respondent-writ petitioner to state before the Commissioner-HR & CE
Department, that there is no illegality or irregularity for the correctness of the
order to be considered by exercising power under Section 21 of the Act. Thus,
the writ petition was liable to be dismissed on the ground that it is not
maintainable, as it is wholly without jurisdiction.
17. When this writ appeal was entertained, an order of interim stay
was granted. The learned counsel appearing for the first respondent-writ
petitioner would vehemently contend that it is the first respondent who
approached the appellant with the request for permitting Krishnasamy Bhattar
to perform the Poojamurai on his behalf and subsequently, when the writ
petition was heard, which is he thought that he alone will perform and therefore,
the learned Writ Court rightly recorded the submissions made through the
learned counsel and allowed the writ petition.
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18. In our considered view, this submission requires to be outrightly
rejected. The first and foremost issue that is required to be considered when
such a request was made before the appellant, was that whether the first
respondent-writ petitioner was an Archakar of Arulmighu Devasamy temple at
Kancheepuram. If only that aspect had been decided, then the next aspect would
be whether such an Archakar can delegate or sub-delegate his duty and whether
there was a right to do so, under any of the Agamic writings or by virtue of any
documents or other orders passed in any earlier proceedings. Probably this is
precisely the reason for which, the Commissioner has framed three grounds in
the notice dated 18.06.2018, namely, whether any enquiry was conducted by the
appellant before passing the order dated 04.12.2017. Secondly, whether the
order dated 04.12.2017 was against the provisions of Section 55(2) of the Act,
which prohibits hereditary succession to any office in the religious institution
and thirdly, whether the appellant has failed to verify whether the writ petitioner
has performed Poojas previously in the temples.
19. Thus, to say the least, that the then Executive Officer of the
temple one Mr.M.Vijayan has abdicated his statutory duty by passing a cryptic
order dated 04.12.2017. When the Commissioner has already taken up the
matter to consider the correctness of such an order by issuing a notice, wherein,
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only a prima facie opinion had been recorded, no Writ of Certiorari could have
been issued to quash the suo motu revision notice, on a concession extended by
the first respondent.
20. We find from the order passed by the learned Writ Court that there
is no finding as to the stand taken by the official respondents, namely, the
Commissioner-HR & CE Department and Assistant Commissioner-Executive
Officer of the temple. Thus, by merely recording a concession given on behalf
of the petitioner, the writ petition could not have been allowed.
21. The learned counsel for the first respondent-writ petitioner would
further state that the Commissioner has passed the order on 25.01.2021,
permitting the writ petitioner to perform the functions of Archakar and there is a
writ petition in the Principal Seat of this Court in W.P.No.2628 of 2021, which
is pending but there is no order of stay. We are not here to examine the
correctness of the order dated 25.01.2021, as it is not subject matter of the
present proceedings.
22. In any event, when the writ appeal was entertained, and an order
of interim stay was granted, as in the preceding paragraph, we have held that the
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Assistant Commissioner-HR & CE Department and the Executive Officer could
not have passed a cryptic order dated 04.12.2017 and therefore, this Court is of
the clear view that the Commissioner-HR & CE Department should be
permitted to proceed further pursuant to the suo motu revision notice dated
18.06.2018.
23. Mr.R.Kannan Bhattar has filed a petition to implead himself and
the prayer for impleading was opposed, which we reject for the reason that in
the suo motu revision notice, the Commissioner has made it very clear that it is
not only for the respondent therein, namely, the writ petitioner-
Thiru.S.Srinivasa Raghavan Bhattar, Thiru.S.Krishnasamy Bhattar, but all other
persons having interest in the above matter.
24. In any event, even a worshipper of the temple is entitled to
maintain a writ petition and invoke the jurisdiction of the Authorities under the
provisions of the Act as that is the scheme of the HR & CE Act. Therefore, the
question of non-suiting Thiru.R.Kannan Bhattar on the ground of no locus
standi stands rejected.
25. The next argument of Mr.T.Mohan, learned counsel appearing for
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the first respondent is that the appellant has no locus standi to file the present
appeal. This argument also does not merit consideration for more than one
reason.
26. Firstly, as we observed earlier, Thiru.M.Vijayan, who was the then
Executive Officer of the temple abdicated his statutory responsibility by passing
a cryptic order dated 04.12.2017, without conducting any enquiry. The writ
appeal has been filed by the successor in office and in the grounds of writ
appeal it has been specifically stated that the first respondent-writ petitioner was
never an Archakar of the said temple and he is an Archakar at Sri Ranganatha
Swamy Temple, Srirangam and never did Pooja by himself till today in
Arulmighu Devarajaswamy Temple, Kancheepuram.
27. Furthermore, the appellant submitted that the writ petitioner has
not impleaded the necessary parties, namely, S.Krishnasamy Bhattar, Archakar
of Arulmighu Devarajaswamy Temple, Kancheepuram, who is the party named
in the impugned suo motu revision notice. Furthermore, it has been specifically
stated that without conducting enquiry, the order dated 04.12.2017 has been
passed. There are other grounds which have been raised, which we are not
presently dealing with, because, it is for the Commissioner-HR & CE
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Department, to take a decision in the matter, pursuant to the suo motu revision
notice dated 18.06.2018.
28. Thus, for the above reasons, this Writ Appeal is allowed and the
order passed in the writ petition is set aside. Consequently, the writ petition is
dismissed and the Commissioner-HR & CE Department, is directed to proceed
further pursuant to the suo motu Revision Notice No.4/2018/D2, dated
18.06.2018; issue fresh notice to the writ petitioner, Thiru.S.Krishnasamy
Bhattar, Thiru.R.Kannan Bhattar and all other persons, who may be interested in
the matter and in order to ensure that the proceedings is made known to all the
worshipping public as well, notice may be affixed in the prominent place in the
office of the temple and such other manner as deemed appropriate to serve the
purpose, for which, the suo motu revision proceeding are being taken.
29. Needless to state that when the Commissioner-HR &CE
Department takes up the matter for enquiry, he shall be guided by the legal
principles and take a decision on merits and in accordance with law,
uninfluenced by any of the observations made in this judgment, which have
been made by the Court to set aside the order passed in the writ petition. No
costs. Consequently, connected miscellaneous petitions are closed.
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W.A.(MD)No.316 of 2020
Index :Yes (T.S.S.,J.) (S.A.I.,J.)
Internet :Yes 29.06.2021
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Note: 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.
To:
The Commissioner,
Hindu Religious & Charitable Endowments
(Administration) Department,
Uthamar Gandhi Adigal Salai,
Nungambakkam, Chennai - 600 034.
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W.A.(MD)No.316 of 2020
T.S.SIVAGNANAM, J.
and
S.ANANTHI, J.
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W.A.(MD)No.316 of 2020
29.06.2021
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