Madras High Court
N.Lakshmanan vs The Commissioner on 11 January, 2022
WP(MD) No.461 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 11.01.2022
CORAM
THE HON'BLE MR. JUSTICE M.SUNDAR
W.P(MD)No.461 of 2022
and
W.M.P.(MD)No.364 of 2022
N.Lakshmanan ... Petitioner
Vs.
1.The Commissioner,
Hindu Religious and
Charitable Endowment Department,
119, Uthamar Gandhi Road,
Nugambakkam, Chennai.
2.The Joint Commissioner,
Hindu Religious and
Charitable Endowment Department,
Tirchy.
3.The Assistant Commissioner,
Hindu Religious and
Charitable Endowment Department,
Trichy.
4.The Fit Person Appointee Cum Executive Officer,
Arulmigu Sedal Mariamman Thirukovil,
Beema Nagar,
Trichy. ... Respondents
1/42
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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 issued by the 3rd respondent in Se.Mu.Na.Ka.No.
2888/2016/A5 dated 30.11.2021 and the consequential proceedings dated
27.12.2021 issued by the 4th respondent and quash the same as illegal and
pass such further or other orders.
For Petitioner : Mr.VR.Shanmuganathan
For Respondents : Mr.A.Baskaran,
Additional Govt. Pleader for R1 to R3
Dr.C.Guhaseelarupan for R4
ORDER
A public temple which goes by the name 'Arulmigu Venugopala
Swamy Temple, Situate in Beema Nagar, Trichy' (hereinafter 'said temple'
for the sake of convenience and clarity) is the subject matter of captioned
writ petition and appointment of Executive Officer of Sedal Mariamman
Thirukovil (also situate in Beema Nagar, Trichy) as Fit person (jf;fhh;) of
said temple vide order dated 30.11.2021 bearing reference nr.K.e.f.vz;.
2888/2016/m5 made by the third respondent, consequential communication
of fourth respondent dated 27.12.2021 and challenge to the same is the
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central theme of the captioned writ petition.
2. Mr.VR.Shanmuganathan, learned counsel for writ petitioner,
Mr.A.Baskaran, learned Additional Government Pleader who accepted
notice on behalf of respondents 1 to 3 and Dr.C.Guhaseelarupan, learned
private counsel who accepted notice on behalf of fourth respondent
(Executive Officer of Sedal Mariamman Thirukovil who has been appointed
as Fit person of said temple) are before this virtual Court, with the consent
of all the learned counsel, main writ petition is taken up and heard out.
3. Owing to the narrow compass on which the captioned matter turns,
factual matrix in a nutshell will suffice. Short facts shorn of particulars
which are not imperative for appreciating this order are that said temple is a
public temple governed by '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); that said temple is
therefore under 'Tamil Nadu Hindu Religious and Charitable Endowments
Department, Government of Tamil Nadu' (hereinafter 'TN HR&CE Dept.'
for the sake of convenience and clarity); that it is the case of the writ
petitioner that said temple was constructed by his ancestors about 100 years
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ago; that writ petitioner moved the second respondent (jurisdictional Joint
Commissioner of TN HR&CE Dept.) vide O.A.No.30 of 2016 under Section
63(b) of TN HR&CE Act with a prayer to declare the office of trusteeship of
said temple as hereditary; that O.A.No.30 of 2016 came to be disposed of
after full enquiry by the second respondent by an order dated 15.07.2020;
that the writ petitioner has carried the same in appeal by way of a statutory
appeal under Section 69(1) of TN HR&CE Act vide A.P.No.25/2021/D2;
that the statutory appeal is now pending on the file of first respondent
(Commissioner of TN HR&CE Dept.); that under such circumstances, the
third respondent (jurisdictional Assistant Commissioner of TN HR&CE
Dept.) issued proceedings dated 30.11.2021 bearing reference
nr.K.e.f.vz;.2888/2016/m5 appointing Executive Officer of Sedal
Mariamman Thirukovil, Trichy as Fit person of said temple; that these
proceedings were not served on the writ petitioner and the writ petitioner
obtained the same by way of taking the 'Right to Information Act,
2005' ('RTI Act' for the sake of brevity) route; that pursuant to this
30.11.2021 proceedings, the fourth respondent has now sent a
communication dated 27.12.2021 to the writ petitioner inter alia calling
upon the writ petitioner to hand over the responsibilities qua said temple
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within seven days; that assailing the order dated 30.11.2021 of the third
respondent and the communication from fourth respondent dated
27.12.2021, captioned writ petition has been filed.
4. In his campaign against the impugned orders (to be noted
30.11.2021 order of third respondent and 27.12.2021 communication of
fourth respondent are being collectively referred to as 'impugned orders' for
the sake of convenience and clarity), learned counsel notwithstanding very
many averments in the writ affidavit and several grounds raised in the writ
affidavit, made pointed submissions, a summation of which is as follows:
a) writ petitioner is admittedly in administration of
said temple even according to 12.02.2018 report of the
jurisdictional Inspector of TN HR&CE Dept.;
b) impugned orders have been made without notice
to the writ petitioner and 30.11.2021 proceedings of third
respondent have not been served on the writ petitioner; and
c) the writ petitioner's appeal against dismissal of his
petition under Section 63(b) of TN HR&CE Act is pending.
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5. In response to the above submissions, learned State Counsel
submitted that the writ petitioner was put on notice and the writ petitioner
on 11.05.2018 has made a statement in writing saying that Fit person
(Thakkar) should not be appointed for said temple until his petition under
Section 63(b) of TN HR&CE Act viz., O.A.No.30 of 2016 on the file of the
second respondent is decided. The same (O.A.No.30 of 2016) was decided
against the writ petitioner on 15.07.2020 (after full enquiry) and therefore,
Fit person has now been appointed by the third respondent in exercise of his
powers under Section 49(1) of TN HR&CE Act.
6. Learned Private Counsel, who accepted notice on behalf of fourth
respondent submitted that he sent the communication dated 27.12.2021 only
pursuant to the impugned order of the third respondent and otherwise he
will only stand bound by any orders made by this Court without taking any
adversarial position in this lis.
7. By way of reply to the above submission, learned counsel for writ
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petitioner made submissions, a summation of which is as follows:
a) there is no disputation or disagreement about the
character of said temple i.e., that it is a public temple but the
issue pertains to administration of said temple;
b) 11.05.2018 statement in writing does not mean that
the writ petitioner has consented for appointment of Fit
person qua said temple; and
c) absent proceedings under Section 63(b) of TN
HR&CE Act also, the writ petitioner has a right to be in
administration of said temple.
8. This Court has carefully considered the rival submissions and this
Court is of the considered view that the prayer of the writ petitioner cannot
be acceded to. The discussion and dispositive reasoning i.e, reasons for
such a considered view / conclusion are as follows:
a) TN HR&CE Act received the assent of the
President on 19.11.1959 and it was published in the
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official gazette on 02.12.1959. On and from these dates,
by virtue of Section 1(3) of TN HR&CE Act all Hindu
public religious institutions, endowments, incorporated
dewaswoms and unincorporated dewaswoms come under
the sweep of TN HR&CE Act. The only exception is Jain
religious institutions vide explanation to Section 1(3) of
TN HR&CE Act. To be noted, all four entities viz.,
religious institutions, endowments, incorporated
Dewaswoms and unincorporated Dewaswoms are defined
terms vide Sections 6(18), 6(17), 6(12) and 6(23)
respectively of TN HR&CE Act. We are not concerned
with Incorporated Dewaswoms and Unincorporated
Dewaswoms in the case on hand. Therefore, Section
6(18) of TN HR&CE Act which defines 'religious
institution' comes into play and the same has to be read in
conjunction with Section 6(20) of TN HR&CE Act which
defines 'temple'. Sections 6(18) and 6(20) of TN HR&CE
Act reads as follows:
'6. Definitions.- In this Act, unless the context
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otherwise requires,
(1) to (17) ..................................
(18) "Religious institution" means a math,
temple or specific endowment”.
(19).......
(20) "temple" means a place by whatever
designation 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;'
Section 6(17) of TN HR&CE Act which defines 'religious
endowments / endowments' reads as follows:
'6. Definitions.- In this Act, unless the context
otherwise requires,
(1) to (16) ..................................
(17) "religious endowment” or
“endowment” means all property belonging to or
given or endowed for the support of maths or temples,
or given or endowed for the performance of any
service or charity of a public nature connected
therewith or of any other religious charity; and
includes the institution concerned and also the
premises thereof; but does not include gifts of property
made as personal gifts to the archaka, service holder
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or other employee of a religious institution;'
b) The above is the scheme of TN HR&CE Act.
This Court has repeatedly held that TN HR&CE Act is a
self-contained code. Therefore, if any one claims a right to
be in administration of a public temple i.e., a religious
institutions within the meaning of Sections 6(18) and 6(20)
of TN HR&CE Act, the same can be only by
perambulating within the four corners of TN HR&CE Act.
In the case on hand, the writ petitioner has chosen the
section 63(b) of TN HR&CE Act route. On Section 63(b)
of TN HR&CE Act, the law is well settled that Section
63(b) of TN HR&CE Act is a legal drill by which the Joint
Commissioner by a quasi-judicial adjudication decides
whether the office of trusteeship of a temple is hereditary
or not. In this case, the Joint Commissioner has answered
the question in negative. This means that as of today the
office of trusteeship of said temple is not hereditary but
this question has been carried in appeal by way of a
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statutory appeal and the appeal is pending, but there are no
interim orders in the appeal. The first respondent who is
the appellate authority is in seizin of the statutory appeal.
It is further to be noted that Chapter V of TN HR&CE Act
captioned 'Inquiries' consists of a mechanism consisting
various /hierarchy of tiers for enquiry into various aspects
of such nature and the matter is now in tier two. To be
noted, this Court has already reminded itself that TN
HR&CE Act itself is a self-contained code.
c) The sequitur qua the above points is the right of
the third respondent to appoint a Fit person under Section
49(1) of TN HR&CE Act cannot be taken away. This right
is only qua administration of a public temple. It only
means that administration of the temple should be in the
hands of a Fit person (Thakkar) appointed within a legal
parameter and ambit of TN HR&CE Act. It is a transitory
provision. A careful reading of Section 49(1) of TN
HR&CE makes it clear that it take us to Section 47 of TN
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HR&CE Act and a conjoint reading of the two will make it
clear that the administration of said temple (as already
alluded to supra) should necessarily be in the hands of a
Fit person duly appointed in accordance with the Statute
albeit purely as a transitory measure;
d) In the above view of the matter, it is clear that the
writ petitioner does not have any legal / statutory right
much less a statutory right under TN HR&CE Act (as of
today) to be in administration qua said temple. Assuming
(on a demurer) even if it is a matter of usage of a religious
institution the same has to be decided only by quasi-
judicial drill under Section 63(e) of TN HR&CE Act';
e) With regard to the question of being put on notice,
this Court vide order dated 07.12.2021 in W.P.(MD)No.
20561 of 2014 [K.Kumaraguruparan Vs. The Joint
commissioner, TN HR&CE Dept.] after making a survey
of the aforesaid proceedings and after referring to two case
laws viz., Sri Devi Ellamman Paripalana Sangam Vs.
The Assistant Commissioner, Hindu Religious and
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Charitable Endowments Board, Chennai and another
reported in 2010 (2) CWC 915 and P.R.Thirupathy and
others Vs. The Assistant Commissioner, Hindu Religious
and Charitable Endowment and others reported in (2015)
4 CTC 755 held that the same will not come to the aid of
the cases such as the writ petitioner by applying the
celebrated constitution Bench judgment in Padma
Sundara Rao case being Padma Sundara Rao Vs. State
of Tamil Nadu case reported in (2002) 3 SCC 533. This
aspect of the matter is captured in paragraphs 12 to 16 in
K.Kumaraguruparan's case which read as follows:
'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
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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 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
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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:
'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
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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 be a hereditary one,
no application under Section 63(a) for a
declaration as to whether the temple in question is
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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. British Railways Board (1972) 2 WLR 537.
Circumstantial flexibility, one additional or
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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.'
The case on hand is no different and that douses the
argument. After all this Court is parens patriae, idol is a
minor and this Court is guardian. Law is well settled in
this regard.
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f) The moment a religious institution / temple is a
public temple i.e, public religious institution which comes
within the scope of TN HR&CE Act administration can
vest in a person only in accordance with TN HR&CE Act
and not in any other manner. The above points by
themselves answer the point pivoted on report of the
jurisdictional Inspector dated 12.02.2018 and appointment
of Fit person without notice. The point that 11.05.2018
statement in writing cannot be construed as a consent is
quite acceptable, it may not be a consent but the writ
petitioner has made it clear that the appointment of Fit
person will be subject to Section 63(b) of TN HR&CE Act
proceedings. Section 63(b) TN HR&CE Act proceedings
has ended against the writ petitioner.
g) The above points also answer the arguments of
learned counsel for writ petitioner that absent Section
63(b) of TN HR&CE Act proceedings also, the writ
petitioner has a right to be in administration of said
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temple. In other words, this argument has been negatived
in the light of discussion and dispositive reasoning set out
supra as there can be no right outside of TN HR&CE Act.
9. Before writing the concluding paragraph, this Court
deems it appropriate to summarize the obtaining legal position and
the same is as follows:
(i)TN HR&CE Act received the assent of the President
on 19.11.1959 and it was published in the Government Gazette
on 02.12.1959;
(ii)On and from the aforementioned appointed date, all
religious institutions [Section 6(18) of TN HR&CE Act] and
all temples [Section 6(20) of TN HR&CE Act] per se, i.e., by
operation of the statute (Section 1(3) of TN HR&CE Act)
stand governed by TN HR&CE Act, the sequitur is, the
administration and management of all temples vest in TN
HR&CE Dept., Government of Tamil Nadu by operation of
statute;
(iii)There is no concept of making a notification and
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bringing religious institution or temple under TN HR&CE
statute;
(iv)On the contrary, there is provision for the
Government (Section 4 of TN HR&CE Act) to exempt a
religious institution / temple from some or all provisions of
TN HR&CE Act;
(v)Therefore, a temple or religious institution should
take the section 4 route to come outside the legal perimeter of
TN HR&CE statute in entirety or one or some of its
provision/s and the power to do is vested in the Government;
(vi)Another legal route available for a religious
institution / temple is to seek a declaration that it is a private
temple in the jurisdictional civil court. If a decree is passed,
that will exempt such religious institution / temple from
operation of TN HR&CE statute;
(vii)Absent aforementioned exemption/ declaration,
every temple in the State of Tamil Nadu stands governed by
TN HR&CE Act and the administration/ management vests in
TN HR&CE Dept., Government of Tamil Nadu as alluded to
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supra and there is no concept of separate notification to bring a
religious institution / temple within the legal perimeter of TN
HR&CE Act as alluded to supra;
(viii)The sequitur to the above is, if any individual or
group of individuals stake a claim to be in administration/
management of a religious institution/temple, they should do
so by perambulating within the legal perimeter of TN HR&CE
Act;
(ix)For an illustration, it may be by way of section 63(b)
route (hereditary trustee) or section 64(1) legal route (scheme).
These are only illustrations and are not exhaustive;
(x)As a continuation of the above position, as already
alluded to supra elsewhere in this order, this court has
repeatedly held that TN HR&CE Act is a self contained code.
A further extension of this legal position is, with regard to
aforementioned illustrations, for a person / persons to stake a
claim, there is a dedicated Chapter under TN HR&CE Act,
namely Chapter V captioned 'INQUIRIES'. This Chapter
provides for various means by which a person or persons can
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stake his/her/their claim to be in administration/ management
of a temple. However, this legal route under TN HR&CE Act
is not limited to Chapter V proceedings. Be that as it may,
Chapter V proceedings provides for a self contained quasi
judicial adjudication machinery where there are clearly drawn
out tiers / hierarchy for quasi judicial adjudication;
(xi)For an illustration, a section 63(b) [hereditary
trustee] application in tier 1 is heard by Joint Commissioner of
TN HR&CE Dept., tier 2 statutory appeal under section 69(1)
lies to the Commissioner, TN HR&CE Dept, tier 3 is, as
against the order of the Commissioner, there is a statutory suit
in the jurisdictional civil court under section 70 and there is a
fourth tier by way of a further appeal to this court (High
Court) under section 70(2). Needless to add that a decision of
this court under section 70(2) can always be carried to Hon'ble
Supreme Court under Article 136 of the Constitution of India;
(xii)Reverting to the administration/management
vesting in TN HR&CE Dept., the appointment of a trustee
should also be done within the legal perimeter of TN HR&CE
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Act, as besides hereditary trustee (alluded to supra), scheme,
etc., there is provision for constitution of Board of Trustees
(non hereditary trustees too) and election of one amongst them
as Chairman of Board of Trustees;
(xiii)If there is any delay or gap in the aforementioned
procedure, i.e., constitution of Trust Board or appointment of
hereditary trustee / non hereditary trustee, scheme appointment
or when the appointed hereditary trustee is suspended, as a
transitory / temporary measure, a Fit Person (jf;fhh;) can be
appointed. Provisions in this regard are contained inter-alia in
sections 47, 49 and 53(4) of TN HR&CE Act;
(xiv)In addition to the above, there is a provision for
appointment of Executive Officer under section 45 of TN
HR&CE Act. Interestingly, the term 'Fit Person'is not defined,
but terms 'Executive Officer' and 'Trustee' are defined vide
Section 6(9) and Section 6(22) respectively of TN HR&CE
Act which reads as follows:
'Section 6(9):
(9)”executive officer” means a person who is appointed to exercise
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such powers and discharge such duties appertaining to the
administration of a religious institution as are assigned to him by or
under this Act or the rules made thereunder or by any scheme settled
or deemed to have been settled under this Act;
Section 6(22):
(22)”trustee” means any person or body by whatever designation
known in whom or in which the administration of a religious
institution is vested and includes any person or body who or which
is liable as if such person or body were a trustee;'
(xv)Therefore, it is clear that Fit Person (jf;fhh;) is also
a trustee;
(xvi)In the light of the above, appointment of a Fit
Person (jf;fhh;) being purely as transitory / temporary measure
qua a religious institution / temple which is clearly under the
sweep and rigor of TN HR&CE Act and consequently under
administration / management of TN HR&CE Dept.,
Government of Tamil Nadu, there is no question of putting an
individual on notice until such individual establishes his right
under the statute through a legal drill, i.e., getting himself
appointed as hereditary trustee, non hereditary trustee or
getting appointed under the scheme, etc.,;
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(xvii) TN HR&CE Act is a self contained code, it is so
devised that there is no vacuum in administration /
management of public temples and aforementioned Fit Person
(jf;fhh;) appointment provision is one such
temporary/transitory measure. To be noted, this Court has
repeatedly held that TNHR&CE Act is a self contained code,
Sections 108, 109 which bar civil suits in respect of
administration or management of religious institutions and
excludes Limitation Act (respectively) buttress, bolster this
obtaining proposition. Sections 108, 109 read with Section
1(3) puts the obtaining legal position that all temples per se
come under TNHR&CE Act and consequently under
administration and management of TNHR&CE Dept. beyond
the arena of any disputation. To be noted, in a long line of
authorities i.e., catena of case laws this Court has taken a clear
categoric and unambiguous view that TNHR&CE Act is a self
contained and an illustrative not exhaustive list of this line of
case laws is as follows:
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(a) In R.Lakshmi Narasimha Bhattar v. The
Commissioner, HR&CE case, reported in 2011
SCC OnLine Mad 2474, while inter-alia dealing
with a honour (during 'Viswaroopa Dharsanam' in
Arulmigu Aranganatha Swamy Thirukovil
Srirangam, Trichy) and while referring to earlier
orders vide Chapter V inquiry proceedings after
holding that remedy is by way of statutory
revision under Section 21, a learned Single Judge
held that TNHR&CE Act is a self contained code.
Most relevant portions are contained in paragraphs
25 and 27 and the same read as follows:
Relevant portion in paragraph 25:
'...Ultimately, if at all the petitioner's grievance
to establish an honour attached to his office if any held
it can be gone into only by instituting a proceedings
under Section 63(e) of the TN HR&CE Act followed by
a suit under Section 70(1) and a further appeal to this
court under section 70(2) of the Act. Merely accusing
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the Joint Commissioner cum Executive Officer as
biased or contending that the remedy by way of
revision need not be availed since the Joint
Commissioner cum Executive Officer has no
jurisdiction to pass orders cannot be countenanced by
this court.
Paragraph 27:
27. In fact the petitioner's hereditary right to
receive honour is seriously under challenge by the
temple management by relying upon the Tamil Nadu
Act 2/1971 and also the allegation was that Rengesa
Prohida service is done only by temple servants and
hereditary succession over such Kaingaryams is not
recognised under law. The so-called custom pleaded
was also broken many times and reading of
Panchangam was done by other families. All the more
reasons, the petitioner has to only approach the
authority under the Act and cannot bypass the Act. The
Act is the self contained code. Only after exhausting
all the remedies, a statutory appeal to this court is
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WP(MD) No.461 of 2022
available over the action of the authorities. Under
these circumstances, W.P.(MD) Nos. 9202 and 9263 of
2011 are also liable to be rejected.'
(Underlining made by this Court for ease of
reference)
(b) In order dated 21.06.2016 in W.P(MD)
No.10840 of 2016 vide V.Subramanian v. The
Joint Commissioner, HR&CE Department case,
another Hon'ble Single Judge of this Court while
dealing with challenge to proceedings under
Section 78 of TNHR&CE Act and while
negativing the challenge to an order under Section
78 of TNHR&CE Act (treating the writ petitioner
as an encroacher) held that TNHR&CE Act is a
self contained code. This is articulated in
paragraph 7 of this V.Subramanian's order and the
relevant portion in paragraph 7 reads as follows:
'7.It is to be noted that the above said Act is a
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WP(MD) No.461 of 2022
self-contained and in-built 'Act'. It has also gives right
to the aggrieved to move before the appropriate forum
under the 'Act'. As such, this Court is of the considered
view that the Petitioner can very well seek appropriate
remedy as against the impugned order, dated
16.03.2016 of the First Respondent and the
consequential order, dated 06.06.2016 of the second
Respondent, under the Tamil Nadu Hindu Religious
and Charitable Endowments Act,1959.'
(c) In Palanichamy v. The Commissioner,
HR&CE Department case, reported in 2016 SCC
Online Mad 21977, the same Hon'ble Single Judge
who authored V.Subramanian's case, while dealing
with a challenge to an order/proceedings under
Section 78 of TNHR&CE Act qua removal of
encroachment reiterated the aforementioned
paragraph 7 of V.Subramaniam's case. This is in
paragraph 30 of Palanichamy's case and the
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relevant portion reads as follows:
'30. At this stage, on behalf of Respondent Nos.
1 to 3, it is brought to the Notice of this Court that on
21.06.2016, in W.P.(MD) No. 10840 of 2016 between
V. Subramanian v. Joint Commissioner, Hindu
Religious and Charitable Endowments Department,
Theni, Dindigul and Madurai Administration,
Madurai, this Court, at paragraph 7, had observed the
following:—
“7. It is to be noted that the above said Act is a self-
contained and in-built ‘Act’. It has also gives right to
the aggrieved to move before the appropriate forum
under the ‘Act’. As such, this Court is of the
considered view that the Petitioner can very well seek
appropriate remedy as against the impugned order,
dated 16.03.2016 of the First Respondent and the
consequential order, dated 06.06.2016 of the second
Respondent, under the Tamil Nadu Hindu Religious
and Charitable Endowments Act, 1959.'
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(d) In M/s.Temple Worshippers Society v.
Government of Tamil Nadu case, some provisions
of one set of Rules which go by the name
'Conditions for Appointment of Executive Officer
Rules, 2015' ('said Rules' for brevity and
convenience) were assailed. This challenge was
negatived by a Hon'ble Division Bench presided
by Hon'ble Justice Sanjay Kishan Kaul as Chief
Justice of this Court (as His Lordship then was)
vide order dated 31.01.2017 reported in 2017 SCC
Online Mad 7178. I was party to the Bench and I
had penned the order for the Hon'ble Division
Bench. To be noted, one of the primary grounds of
challenge to some provisions of said Rules which
is a piece of subordinate legislation made by the
Government under Section 116 of TNHR&CE
Act. To be noted, Section 116 of TNHR&CE Act
is a rule making power. Some provisions of said
Rules do not conform to the statute under which it
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WP(MD) No.461 of 2022
has been made and it exceeds the limits of
authority conferred by the enabling statute is one
of the main grounds on which the challenge was
predicated. In negativing this challenge, one of the
fundamental premise on which the order was
written is that TNHR&CE Act is a self contained
statute. This is captured in sub-paragraph (i) of
paragraph 5 of the order of Hon'ble Division
Bench and the same reads as follows:
Sub-paragraph (i) of paragraph 5:
'(i) The said parent Act was enacted in 1959
with the object of providing a self contained statute
relating to the administration and governance of
Hindu Religious and Charitable Institutions and
Endowments in the State of Tamil Nadu. The said
parent Act was enacted with the intention of amending
and consolidating the law relating to the
administration and governance of Hindu Religious
and Charitable Institutions and Endowments in the
State of Tamil Nadu. We are informed that about thirty
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WP(MD) No.461 of 2022
six thousands Temples are administered by the Tamil
Nadu Hindu Religious and Charitable Endowments
Department, Government of Tamil Nadu, (hereinafter
referred as ‘TNHR & CE Department’ for brevity) by
applying the said parent Act.'
(e) In R.S.Mani v. The Joint Commissioner
case, an order made by the jurisdictional Joint
Commissioner of TNHR&CE Dept. being an order
under Section 63(b) of TNHR&CE Act (to be
noted Section 63(b) pertains to declaring the office
of trusteeship of a temple as hereditary) was
assailed. In and by order dated 09.11.2021 made in
W.P(MD) No.20109 of 2021, I had negatived the
challenge by relegating the writ petitioner to
alternate remedy and while so relegating, the
principles i.e., obtaining position that the
TNHR&CE Act is a self contained code and
Chapter V proceedings therein (to be noted,
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WP(MD) No.461 of 2022
Chapter V is captioned 'Inquiry') is a legal drill
which has a self contained mechanism were
reiterated. This is articulated in paragraph 11 of
this R.S.Mani judgment and the same reads as
follows:
'11. The narrative supra as well as the
dispositive reasoning set out supra will make it clear
that the entire matter turns heavily on facts. As the
matter turns heavily on facts, it is only appropriate
that the same is dealt with by a statutory appellate
authority rather than testing it in writ jurisdiction
where the issues are decided on the basis of affidavits
and counter-affidavits. This is more so, as TN HR &
CE Act itself is a self contained code (as repeatedly
held by this Court) and therefore, Chapter V
proceedings of TN HR & CE Act is a legal drill which
has self contained mechanism (as already alluded to
supra).'
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WP(MD) No.461 of 2022
(f) In C.Rajamohan v. Commissioner &
Another case, a Hon'ble Division Bench of this
Court dismissed a PIL (Public Interest Litigation)
wherein the petitioner wanted his representation
regarding worship there to be considered. In
dismissing this PIL, the Hon'ble Division Bench
proceeded on the basis that the TNHR&CE Act is
a self contained code. This is articulated in
paragraph 2 of this short order dated 26.04.2019
made in W.P(MD) No.10392 of 2019 reported in
2019 SCC Online Mad 10975. Paragraph 2 of
C.Rajamohan's case reads as follows:
'2. In the opinion of this Court, the Hindu
Religious and Charitable Endowment Act is a self-
contained Code and a mandamus of this nature in a
public interest litigation cannot be issued. Hence, this
Writ Petition is dismissed with liberty to the petitioner
to work out his remedy in the manner known to law.
No costs.'
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WP(MD) No.461 of 2022
(xviii)The legal position / statutory scheme as
adumbrated supra is further developed by case law
jurisprudence. The development of case law jurisprudence is, a
presiding deity, i.e., idol in a religious institution / temple is in
the status of a minor and courts are guardians qua such minors.
To put it differently, Courts are parens patriae qua such
religious institutions / temples and custodia legis qua
properties belonging to such religious institutions / temples;
(xix)It is common knowledge that many of religious
institutions / temples are vested with / endowed with vast and
valuable immovable properties which all have been dedicated
for a common cause and therefore, the parens patriae,
custodia legis jurisprudence development assume significance.
(xx) In the light of the adumbration of legal position
thus far, in cases of appointment of Fit Person, a person /
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WP(MD) No.461 of 2022
individual or group of persons / individuals who are in
administration and management of a temple cannot complain
that they are deprived of any legal right as there is none. Such
persons for convenience are referred to as 'eilKiw
eph;thfp' in the communications. Absent legal / statutory right,
NJP (Natural Justice Principle) or violation of the same do not
come into play. On the contrary, the rights of such 'eilKiw
eph;thfp' are preserved, as appointment of Fit Person is after all
a temporary / transitory provision, it is always open to
'eilKiw eph;thfp' to trigger a legal drill under TN HR&CE
Act and get himself recognized if he or she has such legal
entitlements.
10. At a micro level, in the case on hand, the attempt of the writ
petitioner ( eilKiw eph;thfp) to establish his right in the aforementioned
manner by taking section 63(b) route under TN HR&CE Act failed at tier 1
of Chapter V proceedings. In other words, section 63(b) petition being
O.A.No.30 of 2016 was dismissed after full enquiry by the jurisdictional
Joint Commissioner, appeal is pending and there are no interim orders.
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Therefore, the complete absence of NJP is fortified and bolstered in the case
on hand. To be noted, NJP violation will come into play only when the
rights of an individual or legal entity being legal / statutory rights are either
being tread upon or infracted or infarcted in some cases. None in the case
on hand and as a general principle too in cases of such nature. As delineated
supra, the rights are preserved notwithstanding appointment of Fit Person.
To put it differently, appointment of Fit Person does not curtail, abridge,
denude or take away such rights (if there are any), on the contrary they are
preserved but they have to be established through legal drill under the
statute.
11. In the discussion and dispositive reasoning supra itself the right of
the writ petitioner to move the first respondent Commissioner for an interim
order has been preserved. This Court deems it appropriate to leave it open
to the writ petitioner to seek suitable interim orders before the first
respondent / Commissioner who is in seizin of the appeal. If the writ
petitioner chooses to do so, such a plea has to be considered on its own
merits and in accordance with law by the first respondent. In addition to the
same, this Court deems it appropriate to direct the first respondent to
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dispose of A.P.No.25/2021/D2 as expeditiously as his business would
permit and in any event within three months from today i.e., on or before
11.04.2022. The disposal of the appeal will be on its own merits and in
accordance with law uninfluenced by / untrammeled by any observation
made in this order.
12. Ergo captioned writ petition is dismissed albeit preserving the
rights of the writ petitioner to the limited extent indicated supra.
Consequently, captioned WMP is also dismissed. There shall be no order as
to costs.
vsm 11.01.2022
Index : Yes/No
Internet : Yes /No
To
1.The Commissioner,
Hindu Religious and
Charitable Endowment Department,
119, Uthamar Gandhi Road,
Nugambakkam, Chennai.
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WP(MD) No.461 of 2022
2.The Joint Commissioner,
Hindu Religious and
Charitable Endowment Department,
Tirchy.
3.The Assistant Commissioner,
Hindu Religious and
Charitable Endowment Department,
Trichy.
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WP(MD) No.461 of 2022
M.SUNDAR, J.
vsm
W.P(MD) No.461 of 2022
and W.M.P.(MD)No.364 of 2022
11.01.2022
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