Madras High Court
S.Ekambaram vs The Joint Commissioner on 21 April, 2023
W.P.No.32768 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 21.04.2023
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
W.P.No.32768 of 2013
S.Ekambaram ...Petitioner
-Vs-
1. The Joint Commissioner,
Hindu Religious Charitable And Endowment Department,
Salem - 1.
2. The Assistant Commissioner,
Hindu Religious Charitable And Endowment Department,
Namakkal.
3. The Executive Officer,
Arulmighu Kandasamy Thirukkoil,
Kalipatti , Tiruchengode Taluk, Namakkal Dt.
Now appointed as a Takkar,
A/m.Mariamman Thirukkoil and
Muthukumaraswamy Thirukkoil,
Sattayampudur Villate,
Tiruchengode Taluk,
Namakkal District.
4.The Commissioner of HR & CE Department,
Nungambakkam, Chennai-34.
(R4 is suo motu impleaded in W.P.No.32768 of 2013 by order dated
21.04.2023 in W.P.No.32768 of 2013 by SMSJ) ...Respondents
https://www.mhc.tn.gov.in/judis
1/8
W.P.No.32768 of 2013
Prayer:- Writ petition filed under Article 226 of the Constitution of India
praying for issuance of a writ of Certiorarified Mandamus, calling for the
records relating to the impugned proceedings Na.Ka.No. 2877/2013/A3 dt.
12.11.2013 passed by the 2nd respondent, quash the same and
consequently forebear the respondents from interfering with the
management and administration of Arulmigu Mariamman and
Muthukumarasamy Thirukoils of Sattayampudur Village, Tiruchengode
Taluk, Namakkal Dt. in Compliance with the scheme order made in
O.A.34/92/B1/Dt: 13.10.2004 passed by the 1st respondent.
For Petitioner : Ms.N.Manokaran
For Respondents :
( for R1, R2 & R4) : Mr.K.Karthikeyan, Govt.Advocate
(for R3) : Mr.M.Muthukumaran
ORDER
The order impugned dated 12.11.2013 appointing a fit person in
respect of the 3rd respondent temple is under challenge in the present writ
petition.
2.The petitioner states that Arulmigu Mariamman and
Muthukumarasamy temples, Sattayampudur Village, Tiruchengode Taluk,
are the community temples belonging to the writ petitioner. The temples
were established nearly 200 years ago and maintained by the ancestors of
https://www.mhc.tn.gov.in/judis
W.P.No.32768 of 2013
Sengunthar Mudaliar community people of Sattayampudur Village,
Tiruchengode Taluk.
3.The community people filed O.A. No.34 of 1992 before the first
respondent under Section 64(1) of the Tamil Nadu Hindu Religious and
Charitable Endowments Act, 1959, for framing a scheme. A preliminary
order was passed and finally the scheme was approved. Relying on the
scheme, the learned counsel for the petitioner states that the Assistant
Commissioner is incompetent to appoint a fit person in respect of the
temple belonging to the petitioner. That apart, a fit person can be appointed
only if there is a mal-administration or mismanagement. The order
impugned does not speak about any such allegation of mismanagement or
mal-administration and therefore, the order impugned is untenable and
liable to be set aside.
4.The learned counsel for the writ petitioner relied on the judgment
of the Division Bench of this Court in the case of Sri Ram Samaj Vs. The
Commissioner HR & CE (2022)4 MLJ 449, decided on 27.04.2022. The
Hon'ble Division Bench held that there was no mal-administration or
misuse or otherwise in respect of the institution and therefore, invocation
https://www.mhc.tn.gov.in/judis
W.P.No.32768 of 2013
of the provisions of the act for appointing a fit person is unsustainable. The
Hon'ble Division Bench has dispensed with the appellate remedy in the
said case and relying on the said observation, the learned counsel for the
petitioner states that the order impugned in the present writ petition is to be
set aside.
5.The learned Government Advocate appearing on behalf of the
respondents raised an objection by stating that the petitioner has not
exhausted the appellate remedy contemplated under the provisions of the
HR & CE Act. The petitioner has to approach the Commissioner of HR &
CE Department for adjudication of the actual disputes and thus, the writ
petition is to be rejected.
6.Perusal of the order impugned would reveal that there was no
complete adjudication of facts or otherwise. The order impugned is cryptic
and even in the said circumstances the Courts have an option to remand the
matter back to the very same authority for fresh adjudication.
7.In the present case, remanding back the matter now, after a lapse
of more than 10 years would do no service to the cause of justice. For the
https://www.mhc.tn.gov.in/judis
W.P.No.32768 of 2013
past about 10 years, by virtue of the interim order, the petitioners are in
administration of the temple and therefore, the administrative affairs and
other aspects of the temple for the past 10 years are also to be ascertained
by the competent authority for the purpose of forming an opinion. In the
event of remanding the matter back, it would cause prejudice to the parties
since the petitioner's community people are administering the temple for
the past 10 years during the pendency of the writ petition. Thus, the option
left open is to approach the Commissioner of HR & CE Department for
complete adjudication of issues raised between the parities. The petitioners
are at liberty to raise all their objections including grounds of jurisdiction,
validity of the order impugned, as well as the allegations, if any raised by
the competent authorities of the Department. In the event of submitting an
appeal/ revision in this regard, the Commissioner of Hindu Religious and
Charitable Endowment Department has to consider the same and pass
orders on merits and in accordance with law by affording opportunity to all
the parties.
8.The Commissioner has not been impleaded as a party/respondent
in this writ petition. Thus, this Court is inclined to implead the
Commissioner of HR & CE Department, Nungambakkam Chennai-34, as
https://www.mhc.tn.gov.in/judis
W.P.No.32768 of 2013
the 4th respondent suo moto in the present writ petition and the learned
Government Advocate takes notice on behalf of the impleaded respondent.
9.Accordingly, the writ petition is disposed of with a direction
granting liberty to the writ petitioner to prefer an appeal / revision before
the Commissioner of HR & CE Department, Nungambakkam, Chennai,
within a period of 4 weeks from the date of receipt of a copy of this order.
On receipt of any such appeal / revision from the petitioner, the
Commissioner of HR & CE Department shall adjudicate the issues on
merits and in accordance with law by affording opportunity to all the
parties concerned and thereafter pass final orders on merits and in
accordance with law within a period of 12 weeks from the date of receipt
of a copy of that appeal.
10.With these directions, the writ petition stands disposed of. No
costs.
(sha) 21.04.2023
Index : Yes (2/2)
Speaking Order
Neutral Citation : Yes
https://www.mhc.tn.gov.in/judis
W.P.No.32768 of 2013
To
1. The Joint Commissioner,
Hindu Religious Charitable And Endowment Department,
Salem - 1.
2. The Assistant Commissioner,
Hindu Religious Charitable And Endowment Department,
Namakkal.
3. The Executive Officer,
Arulmighu Kandasamy Thirukkoil,
Kalipatti , Tiruchengode Taluk,
Namakkal Dt.
4.The Commissioner of HR & CE Department,
Nungambakkam, Chennai-34.
https://www.mhc.tn.gov.in/judis
W.P.No.32768 of 2013
S.M.SUBRAMANIAM. J.,
(sha)
W.P.No.32768 of 2013
21.04.2023
(2/2)
https://www.mhc.tn.gov.in/judis
