Madras High Court
A.Aruchamy vs The Joint Commissioner on 22 June, 2023
W.P.No.22006 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22.06.2023
CORAM :
THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH
W.P.No.22006 of 2022
A.Aruchamy ... Petitioner
.Vs.
1.The Joint Commissioner
Hindu Religious Charitable &
Endowments Department
Balasundaram Road
Coimbatore-600 018.
2.The Assistant Commissioner
Hindu Religious & Charitable
Endowment Department
Kovai.
3.The Fit Person
A/m. Angala Parameshwariamman Temple
Light House Road (Kennedy Theatre behind)
Venkatakrishna Road Junction
R.S.Puram
Coimnbatore-641 002. .. Respondents
Writ Petition filed under Article 226 of the Constitution of India praying for the
issuance of a Writ of Certiorari, calling for the records pertaining to the proceedings of the 2nd
respondent dated 01.02.2022 in Na.Ka.No.1918/2015/A6 appointing fit person and further
taken charge in suo-moto by the 3rd respondent in the pursuance of the said order.
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W.P.No.22006 of 2022
For Petitioner Mrs.V.S.Usharani
For Respondents Mr.K.Karthikeyan
Government Advocate
for R1 and R2
Mr.R.Sanjay
for R3
ORDER
This writ petition has been filed challenging the proceedings of the 2nd respondent in
Na.Ka.No.1918/2015/A6, dated 01.02.2022, appointing a fit person to run the administration
of Angala Parameshwariamman Temple at Coimbatore District.
2.The case of the petitioner is that the subject Temple was founded by the ancestors
of the petitioner and it was always administered only by the family belonging to the
petitioner. The father of the petitioner had formed a Trust in order to run the Temple in the
year 2004 and the Trust Deed was also registered. Subsequently, supplementary Trust
Deeds were also executed and registered. The further case of the petitioner is that after the
lifetime of his father, he was inducted as a Trustee and he along with the other Trustees are
in administration of the Temple and they are regularly performing the festivals and daily
poojas.
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W.P.No.22006 of 2022
3.The grievance of the petitioner is that through the impugned proceedings dated
01.02.2022, the 2nd respondent straightaway proceeded to appoint a fit person to take over
the administration and management of the Temple. According to the petitioner, this order
was passed without affording any opportunity and hence, suffers from violation of principles
of natural justice and consequently, the proceedings of the 2nd respondent has been put to
challenge in this writ petition.
4.The 3rd respondent has filed a counter affidavit. The 3 rd respondent has taken a
stand that the Trust Deed based on which the petitioner is claiming his right has been
declared null and void by a competent Civil Court in O.S.No.1567 of 2009, through judgment
and decree dated 16.06.2015. In view of the same, the claim made by the petitioner that
he is the Trustee has been denied by the 3rd respondent. The further stand taken by the 3 rd
respondent is that a notice dated 28.09.2021, was sent calling for an explanation on various
charges and there was no response or explanation and hence, a fit person was appointed to
run the affairs of the Temple. The 3rd respondent has further stated that even on an earlier
occasion through proceedings dated 15.12.2021, a fit person was appointed and this was not
put to challenge. Subsequently, through the impugned proceedings dated 01.02.2022 a
subsequent fit person was appointed and that alone has been put to challenge in this writ
petition. The 3rd respondent has also questioned the maintainability of the writ petition on
the ground the petitioner has an alternative remedy to approach the Commissioner of HR &
CE by way of filing a Revision Petition. On these grounds, the 3rd respondent has sought for
the dismissal of the writ petition.
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W.P.No.22006 of 2022
5.Heard Mrs.V.S.Usharani, learned counsel for the petitioner, Mr.K.Karthikeyan,
learned Government Advocate for R1 and R2 and Mr.R.Sanjay, learned counsel for R3.
6.The main crux of the argument of the learned counsel for the petitioner is that the
fit person has been appointed for the Temple without issuing any notice and without
affording any opportunity to the petitioner and other Trustees, who were administering the
Temple. It was therefore contended that the impugned proceedings of the 2 nd respondent is
liable to be interfered on this ground alone. To substantiate this submission, the learned
counsel relied upon the following judgements:
(a) Sri Devi Ellamman Paripalana Sangam v. The Assistant
Commissioner, HR & CE Board and Others reported in
MANU/TN/4714/2010.
(b) P.Seethalakshmi v. The Joint Commissioner, Tamil Nadu HR &
CE Department & Ors reported in MANU/TN/0785/2018.
7.The learned counsel for the petitioner further contended that during the pendency
of this writ petition, the respondents were directed to verify as to who is in the administration
of the Temple and based on the response, this Court passed an order on 30.09.2022, by
giving a positive direction to the respondents to hand over the charge to the petitioner. In
view of the same, it was submitted that the petitioner is continuing to be in administration
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W.P.No.22006 of 2022
and control of the Temple. The learned counsel for the petitioner further submitted that the
petitioner has already taken steps to frame a scheme for the Temple and the same is
pending before the concerned authority and while so, a hasty decision was taken by the 2nd
respondent to appoint a fit person to the Temple.
8.This Court has to first ascertain the basis on which the petitioner has approached
this Court challenging the proceedings of the 2nd respondent appointing a fit person. It is
pellucid from the pleadings that the petitioner is claiming the right only as a Trustee and
based on the Trust Deed dated 28.04.2004, which was registered as Document No.1246 of
2004. According to the petitioner, subsequently supplementary Trust Deeds were also
executed. In view of the same, it must be seen whether the petitioner can maintain this writ
petition in his capacity as the Trustee.
9.The Trust Deed dated 28.04.2004 became a subject matter of challenge in
O.S.No.1567 of 2009 in a suit filed by one Radhakrishnan before the II Additional District
Munsif Court, Coimbatore. The first defendant in that suit was the father of the petitioner and
two other Trustees were also made as defendants apart from the Assistant Commissioner of
HR & CE Department. The suit was decreed ex parte through judgment and decree dated
16.6.2015 and the Trust Deed dated 28.04.2004 and the amended trust deed dated
20.01.2006 standing in the name of the defendants were declared as null and void. There
was a consequential relief that was granted by the Civil Court to the effect that the
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W.P.No.22006 of 2022
Trustees are restrained from performing the poojas in any manner in their capacity as
Trustees.
10.The learned counsel for the petitioner submitted that the decree was obtained
behind the back of the father of the petitioner without issuing any proper notice and hence,
the ex parte decree is not binding.
11.It was further contended that the petitioner was also not aware of the decree that
was passed in the suit.
12.The submission made by the learned counsel for the petitioner does not stand the
test of law. It is now too well settled that even an ex parte decree is as good as a contested
decree till it is reversed or set aside by a competent Court. Useful reference can be made to
the judgment of the Apex Court in Saroja .v Chinnusamy (died) by LRS and Another
reported in (2007) 5 CTC 233. In that case, the Apex Court held that even an ex parte
decree will operate as res judicata against whom the decree was passed unless this decree is
challenged in the manner known to law and the person concerned is able to prove before the
Court that the decree is non-est or it has been obtained by fraud. The Apex Court in
Rajinder Kumar .v. Kuldeep Singh and Others reported in (2014) 2 MLJ 496 held that an
ex parte decree is valid and it is binding on the parties for all purposes and the parties will be
relegated back to the original position only if the ex parte decree is set aside.
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W.P.No.22006 of 2022
13.In the light of the settled position of law, it is too late in the day for the petitioner
to raise a contention that the decree passed by the Civil Court is only an ex parte decree and
hence, not binding. This decree was passed against the father of the petitioner, who was the
first defendant and no steps have been taken till date to question the ex parte decree passed
and hence, this decree is valid and binding for all purposes and the petitioner being the son
of K.Arumugam, who was the first defendant in the suit, is also equally bound by the decree
and the petitioner cannot be permitted to wriggle out of the decree passed by the Civil Court.
14.In view of the above finding, the very locus standi of the petitioner to question the
impugned proceedings of the 2nd respondent, becomes very shaky. The petitioner cannot
question the impugned proceedings of the 2 nd respondent appointing a fit person on the
ground that no notice was given to the petitioner since the petitioner no longer holds the
position of a Trustee and there is no occasion for serving any notice to the petitioner before
the fit person was appointed.
15.It is quite apparent from the records that there is a serious dispute as among the
Trustees and to cap it all, the original Trust Deed itself has been held to be null and void. In
such confused state of affairs, it is more appropriate for the department to manage the
affairs of the Temple effectively only through a fit person. The learned Government Advocate
appearing on behalf of the respondents submitted that a notice was already issued by the
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W.P.No.22006 of 2022
Department dated 28.09.2021 questioning the authority of the persons who were attempting
to take over the administration of the Temple and the petitioner and others did not respond
to this notice. The learned counsel for the petitioner submitted that this notice was not
received by the petitioner. It is not necessary for this Court to go into this issue. If really
any maladministration had taken place by persons who do not have any authority to
administer the Temple, it is independently left open to the respondents to initiate
proceedings by issuing appropriate notice and taking a decision in accordance with law.
16.It is made clear that till the ex parte decree passed in O.S.No.1567 of 2009, is set
aside in the manner known to law, the petitioner cannot calm any right in his capacity as a
Trustee since there is no trust in existence by virtue of the Trust Deed itself being declared
as null and void.
17.The interim order already passed by this Court directing the respondents to hand
over charge to the petitioner, cannot be treated as a precedent and the interim order can
never bind the Court while deciding the case finally. Therefore, merely because the charge
was handed over to the petitioner by virtue of an interim order, that does not create any
vested right in the petitioner and it is always subject to the final result in the writ petition.
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W.P.No.22006 of 2022
18.In the light of the above discussion, this Court does not find any ground to
interfere with the impugned proceedings in Na.Ka.No.1918/2015/A6, dated 01.02.2022, of
the 2nd respondent and accordingly, this writ petition stands dismissed. No costs.
22.06.2023
KP
Internet : Yes/No
Index : Yes/No
Neutral Citation :Yes/No
To
1.The Joint Commissioner
Hindu Religious Charitable &
Endowments Department
Balasundaram Road
Coimbatore-600 018.
2.The Assistant Commissioner
Hindu Religious & Charitable
Endowment Department
Kovai.
https://www.mhc.tn.gov.in/judis
W.P.No.22006 of 2022
N.ANAND VENKATESH, J.
KP
W.P.No.22006 of 2022
22.06.2023
https://www.mhc.tn.gov.in/judis
