Writ petition No.19636 of 2009 has been filed under Article 226 of the Constitution of India to issue a writ of Certiorari to call for the records pertaining to the impugned order in Na.Ka.No. 56655/08/a2 dated 18.09.2009 on the file of the Commissioner, Hindu Religious and Charitable Endowments Department, Chennai, the second respondent herein and to quash the same.
Writ petition No.20146 of 2009 has been filed under
Article 226 of the Constitution of India to issue a writ of Certiorari to call for the records pertaining to the impugned order in G.O.Ms.No.292 dated 23.09.2009 on the file of the Secretary to Government, Tamil Development, Religious Endowments and Information, Fort St. George, Chennai, the first respondent herein and to quash the same.
For petitioners : Mr.K.Alagirisamy, S.C., for Mr.R.Sugumaran, in W.P.No.19636 of 2009 Mr.R.Shanmugasundaram, S.C.
for Mr.S.D.Ramalingam in W.P.No.20146 of 2009 For respondents : Mr.T.Chandrasekaran, Spl.G.P.
(W.P.19636 of 2009): for R.1 to R4 Mr.R.Gandhi, S.C., for Mr.S.Conscious Elango, for R.5 Mrs.Hema Sampath, S.C., for Mrs.Mahathi Chari, for R.7 (W.P.No.20146 of 2009): Mr.T.Chandrasekaran, Spl.G.P.
for R.1 to R4 Mr.R.Gandhi, S.C., for Mr.S.Conscious Elango, for R.5 Mrs.Hema Sampath, S.C., for Mrs.Mahathi Chari, for R.7 and R.8 COMMON ORDER W.P.No.19636 of 2009 has been filed challenging the impugned order of the second respondent dated 18.09.2009, an order cancelling the election conducted on 23.10.2008 for the Trusteeship of the temple Arulmigu Mariamman and for conducting the election afresh.
2. W.P.No.20146 of 2009 has been filed challenging the impugned order of the first respondent dated 23.09.2009, appointing the fifth respondent herein as trustee, as an interim measure till the election is conducted for the trusteeship of the temple.
3. The averments made in the affidavit in support of the writ petition in W.P.No.19636 of 2009, in nutshell, are set out here under:-
(a) The petitioner is one of the hereditary trustees / poosaries of Arulmighu Mariammal Thirukkoil, Irukkangudi, Sattur Taluk, Virudhungar District. At the instance of respondents 5 and 6, the third respondent initiated suo motu proceedings in O.A.No.4 of 2000 for modification of the existing scheme and the same is pending. Since the term of office of the Managing Trustee would expire on 27.10.2008, a meeting for election of Managing Trustee was convened to be held on 13.10.2008 by a notice dated 30.09.2008. Except respondents 5 and 6, all the other eight trustees were supporting him. Since respondents 5 and 6 felt that they would not be elected as Chairman, they tried to postpone the election on one reason or other. Writ petitions were filed before this Court as well as before the Madurai Bench of this Court by the persons set up by respondents 5 and 6 with a view to stall the election.
(b) They have failed in their attempt before this Court. Further, they have filed a revision petition through one S.R.Muthuraman Poosari in R.P.No.48 of 2008 challenging the election notice dated 30.09.2008 and for an order of staying the election. The second respondent, without giving any notice, passed an exparte order staying the participation of the petitioner in the election. The third respondent, in his proceedings dated 10.10.2008, directed postponement of election by ten days. The Inspector of Police thereafter, forced the Managing Trustee to stop the conduct of election on the ground of law and order problem. Hence, the election was postponed.
(c) The second respondent once again passed an exparte order extending his earlier order and granted stay of the petitioner's participation in the election. The petitioner therefore, has to file a writ petition in W.P.No.9157 of 2008 to quash the said order. The then Chairman of the Board of Trustee also filed a writ petition in W.P.No.9159 of 2008 by impleading all the trustees praying for an order to go ahead with the election scheduled to be held on 23.10.2008. Thereupon, the Madurai Bench of the Madras High Court directed the election to be conducted in the presence of the District Revenue Officer, Virudhunagar.
4. The averments made in the affidavit in support of the writ petition in W.P.No.20146 of 2009, in nutshell, are set out here under:-
(a) The petitioners are the Hereditary Trustees of Arulmighu Mariamman Temple at Irrukangudi Village in Sattur Taluk, Virudhunagar District. It is a temple defined under Section 6 (20) of the Tamil Nadu Hindu Religious and Charitable Endowment Act, (herein after referred to as the said Act). The temple is governed by the scheme framed by the Board of Commissioner for Hindu Religious and Charitable Endowment, (herein after referred to as H.R & C.E.), Madras vide order No.1000 dated 04.05.1935. In and by the scheme, the temple and its properties shall be administered and managed only by the Board of Hereditary Trustees nominating or electing one among them to be the Chairman. They are elected once in three years.
(b) The Government passed an order on 29.10.1991 appointing an Executive Officer to the temple. Thus, the temple was classified under clause (iii) of Section 46 of the said Act. Originally, the temple was founded by one Ramaswamy Poosari, the forefather of the first petitioner and after him, his sons Ramasamy Poosari alias Mookan Poosari, Muthuraman Poosari and Jothiyan Poosari, were all trustees cum poosaris. Only from these trustees, the family tree expanded. Before the orders were passed in R.P.No.169 of 1975 dated 23.03.1977, all the members in the family are considered as Hereditary Trustees. Since there were difference of opinion and disputes among themselves, the said revision petition was filed. After hearing all the Hereditary Trustees, it was finally decided on 23.03.1977 stating that only the first male son will become a Hereditary Trustee of the temple.
(c) Whenever elections were announced, writ petitions or suits will be filed to stop the election. The tenure of the Chairman of the Board of Hereditary Trustees came to an end on 27.10.2008. Hence, the outgoing Chairman issued a Special Meeting Notice dated 30.09.2008 to hold the special meeting on 13.10.2008 and to elect a Chairman for the period between 28.10.2008 and 27.10.2011. There were 11 Hereditary Trustees at that time, who were eligible to take part in the election. Except, Ramar Poosari and Sethulingam Poosari, eight of the trustees were supporting Ramamurthy Poosari. Respondents 5 and 6 started to initiate vexatious litigations before this Court as well as Civil Civil Court to postpone the election so that the fifth respondent could with the connivance of the H.R. & C.E. Officials be appointed as a Fit person. Under the provisions of the said Act, the Department will have power to appoint a Fit Person if no elections are held before the expiry of the term.
(d) R.5, the person set up by Sethulingam Poosari and R.6, his associate Ramar Poosari moved the Madurai Bench of this Court to appoint a Fit Person by dismissing the Board of Trustee and to quash the election notice dated 30.09.2008 and they were dismissed. Thereafter, a revision petition was filed before the second respondent in R.P.No.48 of 2008 challenging the election notice dated 30.09.2008 and for ordering stay of election. Without giving any notice, the second respondent passed an exparte order staying the participation of the second respondent in the election scheduled to be held on 13.10.2008, though there was no such prayer. However, the third respondent, by his proceedings dated 10.10.2008, directed postponement of the election for ten days.
(e) As if it was not enough, at the instigation of respondents 5 and 6, the Inspector of Police, Irrukangudi Police Station, forced the Managing Trustee to stop the conduct of election on the ground of law and order problem. Hence, no election could be conducted on 13.10.2008 and it was resolved to postpone the meeting on 23.10.2008. However, the second respondent once again passed an exparte order in R.P.No.48 of 2008 extending his earlier order and granting stay of the participation of second petitioner in the election. Hence, two writ petitions were filed before the Madurai Bench of this Court in W.P.No.9157 of 2008 to quash the exparte order made in the said revision petition and W.P.No.9159 of 2008 by the then Chairman of the Board of Trustees, impleading all the Trustees praying for an order to go ahead with the election scheduled to be held on 23.10.2008.
5. Except the above averments made in both the writ petitions, the following facts are common in both the writ petitions, which in nutshell are set out here under:-
(a) By an order dated 20.10.2008, an order was passed in W.P.No.9157 of 2008 setting aside the stay granted by the department and it was further directed that the existing 11 Trustees were allowed to participate in the election either as candidates or voters, as the case may be. In W.P.No.9159 of 2008, it was ordered that the election shall be conducted on 23.10.2008 or on such other date within 27.10.2008, as the case may be. Both the writ petitions were ordered subject to the outcome of the enquiry proceedings, which are pending before the Commissioner. The District Revenue Officer, Virudhunagar, was directed to be an observer for the said election since certain persons raised apprehension about the law and order problem in the election.
(b) On receipt of the said order, the District Revenue Officer, Virudhunagar was intimated in time on 21.10.2008 through wire order and further by the petitioners through a telegram dated 21.10.2008 and personally on 22.10.2008 at 10.30 a.m. However, she issued a letter dated 22.10.2008 at 10.30 p.m. seeking to postpone the election on some other date in spite of the orders of the Madurai Bench of the Madras High Court in those writ petitions.
(c) On 23.10.2008 at 10.00 a.m., the special meeting for the election of the Chairman of Board of Trustees was held. Except Sethuramalingam Poosari and Ramar Poosri, viz., respondents 5 and 6 respectively, all the other Executive Trustees were present to vote (8 out of 10). They have elected the second petitioner in W.P.No.20146 of 2009 as new Chairman to the Board of Trustees. The department officials nominated by the Commissioner were also present including the fourth respondent, the Executive Officer of Arulmigu Mariammal Thirukoil, Irrukkankudi.
(d) The fifth respondent has filed O.S.No.7380 of 2008 before the learned VIII Assistant Judge, City Civil Court, Chennai, who does not have territorial jurisdiction to question the hereditary trusteeship of Rajendra Poosari, the outgoing Chairman, seeking declaration that he was not a hereditary trustee and for an injunction restraining him from holding the election. Even though an exparte injunction was granted on 22.10.2008, the same was communicated to the third respondent only on 24.10.2008, viz., subsequent to the election. Therefore, C.R.P.PD.No.3634 of 2008 was filed to strike off the plaint.
(e) Suppressing the pendency of the said revision, the fifth respondent filed a second suit in O.S.No.8178 of 2008 before the same Court, seeking declaration that the election dated 23.10.2008 was null and void and for an injunction restraining the second petitioner from acting as the Chairman and obtained interim injunction. Hence, C.R.P.No.4051 of 2008 was filed challenging the said order and seeking rejection of the plaint. This Court was pleaded to grant interim suspension of the interim order granted on 04.12.2008.
(f) On 19.01.2009, C.R.P.PD.No.3634 of 2008 was disposed of directing the trial Court to dispose of the suit giving liberty to raise all the legal and factual contentions before the trial Court. C.R.P.PD.No.4051 of 2008 was also disposed of setting aside the interim order and also rejecting the prayer to strike off the plaint in O.S.No.8178 of 2008.
(g) Thereafter, a clarification application was filed before the Madurai Bench of the Madras High Court in M.P.No.1 of 2008 in W.P.No.9157 of 2008. The same was also dismissed holding that any person, who is aggrieved by an order made in the writ petition is at liberty to challenge the same in a manner known to law, but, however, holding that the application for clarification does not require any consideration. While the facts thus stood, the second respondent had passed the impugned order dated 18.09.2009 cancelling the election already held. The said order was under challenge in W.P.No.19636 of 2009. While so, the first respondent appointed the fifth respondent as a Fit Person / Chairman of the Board of Trustees of the temple by the impugned order dated 23.09.2009, which is challenged in W.P.No.20146 of 2009.
6. Counter affidavit was filed in W.P.No.19636 of 2009 by the second respondent on his behalf and on behalf of respondents 1 and 3, wherein the following facts have been set out:-
(a) The temple is under the administrative jurisdiction of the Joint Commissioner, Sivagangai. The administration is being looked after by the Executive Officer in the cadres of Assistant Commissioner, H.R. & C.E., Department along with Board of Hereditary Trustees. Though the Chairman, Board of Trustees has to be elected or nominated under the provisions of the said Act, the Chairman is being elected in the recent past under the directions of this Court.
(b) There were misunderstanding between the trustees and hence, the petitioner in W.P.No.19636 of 2009 and the first petitioner in W.P.No.20146 of 2009 have filed two writ petitions in W.P.Nos.9157 and 9159 of 2008 before the Madurai Bench of the Madras High Court in the matter of election of Chairman, Board of Hereditary Trustees scheduled to be held on 23.10.2008. The Madurai Bench of this Court has ordered to conduct the election on 23.10.2008 or on such other date within 27.10.2008 as may be decided by the trustees. Further, it was directed that the District Revenue Officer, Virudhunagar shall be the observer for the said election. In spite of the same, S.A.Rajendran Poosari conducted election on 23.10.2008 unilaterally in the absence of the District Revenue Officer, Virudhunagar and sought for approval of the same in his letter dated 23.10.2008.
(c) In the meantime, the fifth respondent filed a suit before the Civil Court Court, Chennai, and obtained interim orders. Challenging those orders, revisions have been filed and they were also disposed of. In the mean while, the petitioner sought permission to operate the Bank Account jointly with the Assistant Commissioner / Executive Officer of the temple in his letter dated 28.07.2009. In view of the said fact, the Joint Commissioner, Sivagangai has filed a petition before the Madurai Bench of this Court seeking clarification as the election was not conducted on 23.10.2008 properly in the presence of District Revenue Officer, Virudhunagar. After hearing the parties, the Madurai Bench of this Court has dismissed the application for clarification.
(d) Thereupon, the second respondent had passed orders on the petition filed by S.R.Muthuraman Poosari dated 07.10.2008 and on the application made by S.A.Rajendran Poosari dated 23.10.2008 and on the application made by the petitioner in W.P.No.19636 of 2009. Writ petitions have been filed challenging the order in this regard dated 18.09.2009 cancelling the election conducted on 23.10.2008.
(e) The decision taken to conduct the election in the absence of the District Revenue Officer, Virudhunagar, is purely violation of the direction of the Madurai Bench of the Madras High Court. The presence of the Assistant Commissioner / Executive Officer on 23.10.2008 is not to be considered as representative of the department as per the direction of this Court. The second respondent had issued only instructions to the Joint Commissioner, Sivagangai to comply with the directions of this Court, made in W.P.Nos.9157 and 9159 of 2008.
(f) The second respondent was not in a position to take further course of action in view of the interim orders passed in the suits. Hence, clarification was sought before the Madurai Bench of this Court. The impugned order was passed only on the representations of S.A.Rajendran Poosari and S.R.M.Ramamurthy Poosari and not on the representation of the fifth respondent. Since the election was not conducted as per the directions of this Court, the fifth respondent has been nominated as Chairman of the Board of Trustees by the Government by proceedings dated 23.09.2009 as an interim measure and now he is functioning as Chairman from 25.09.2009.
Making those averments, the counter affidavit sought for the dismissal of the writ petition.
7. Counter affidavit was filed on behalf of the fifth respondent wherein the following facts have been set out:-
(a) The writ petition is not maintainable since the petitioners have got an alternative remedy available under the said Act. Section 114 of the said Act contemplates the same.
(b) It is false to state that except the fifth respondent and one Ramar Poosari, eight of the trustees were supporting the petitioner. It is also not correct to state that election is sought to be postponed at the instance of the fifth respondent.
(c) The Madurai Bench of the Madras High Court, by its order dated 20.10.2008 directed to conduct the election in the presence of the District Revenue Officer, Virudhunagar, who shall be the observer of the election. However, he was not invited well in advance as ordered by the Court, but, invited her only in the afternoon of 22.10.2008 to be the observer of the election scheduled to be held on 23.10.2008. The District Revenue Officer through her proceedings dated 22.10.2008 had required certain particulars. Thus, the election said to have been conducted is in absolute violation of the orders passed by the Madurai Bench of this Court. In the above circumstances, with an intention to safeguard the interest of the temple, the first respondent nominated him as the temporary Chairman of the Board of Trustees.
Thus, the counter affidavit sought for the dismissal of the writ petition.
8. Counter affidavit was filed by the fifth respondent in W.P.No.20146 of 2009 in tune with the counter affidavit filed in W.P.No.19636 of 2009.
9. I have heard Mr.K.Alagirisamy, learned Senior Counsel appearing for the petitioner, Mr.T.Chandrasekaran, learned Special Government Pleader, appearing for respondents 1 to 4, Mr.R.Gandhi, learned Senior Counsel appearing for the fifth respondent and Mrs.Hema Sampath, learned Senior Counsel appearing for the seventh respondent in W.P.No.19636 of 2009 and Mr.R.Shamnugasundaram, learned Senior Counsel appearing for the petitioners, Mr.T.Chandrasekaran, learned Special Government Pleader, appearing for respondents 1 to 4, Mr.R.Gandhi, learned Senior Counsel appearing for the fifth respondent and Mrs.Hema Sampath, learned Senior Counsel appearing for respondents 7 and 8 in W.P.No.20146 of 2009.
10. The traversing of facts before the filing of the writ petitions before the Madurai Bench of the Madras High Court may not be much relevant to the issues raised in the present writ petitions and hence, those facts are not dealt with here under.
11. Suffice it to say that one S.R.Muthurama Poosari filed R.P.No.48 of 2008 challenging the election notice dated 13.08.2008 and for staying the election. The second respondent viz., the Commissioner, H.R. & C.E. Department had passed an exparte order staying the participation of one S.R.M.Ramamurthi Poosari, the petitioner in W.P.No.19636 of 2009 and the second petitioner in W.P.No.20146 of 2009. The third respondent, viz., the Joint Commissioner of H.R. & C.E. Department, pursuant to the order of the second respondent, in his proceedings dated 10.10.2008, directed postponement of the election by ten days. Hence, the election could not be held on 13.10.2008 and it was postponed to 23.10.2008. Again, the second respondent seems to have passed an order in R.P.No.48 of 2008 extending his earlier order and granting stay of participation of the petitioner in W.P.No.19636 of 2009 in the election. Hence, he had approached the Madurai Bench of the Madras High Court by filing a writ petition in W.P.No.9157 of 2008 to quash the said order. The then Chairman of the Board of Trustee also seems to have filed a writ petition in W.P.No.9159 of 2008 to go ahead with the election scheduled to be held on 23.10.2008. By a common order dated 23.10.2008, both the writ petitions were disposed of. Paragraphs 19 to 23 of the said order are usefully extracted here under:-
" 19. In the result, the W.P.No.9157 of 2008 is ordered setting aside the stay granted and extended by the Commissioner and it is directed hereby that the existing eleven trustees referred to supra should be allowed to participate in the election either as candidates or voters as the case may be and there need not be any embargo. The W.P.No.9159 of 2008 is ordered to the effect that the election shall be conducted on 23.10.2008 or on such other date within 27.10.2008 as may be decided by the trustees and the Chairman be elected. Both the writ petitions are ordered subject to the outcome of the probe or enquiry proceedings, which is pending before the Commissioner.
20. The learned counsel appearing for the petitioners in unison would submit that an Advocate Commissioner may be appointed as observer as they are having some reservation relating to the Hindu Religious and Charitable Endowments official's or revenue official's participation as observer in the election.
21. I am of the considered opinion that there need not be any apprehension on the part of the petitioners and the District Revenue Officer, Virudhunagar shall be the observer for the said election and to that effect the present Chairman shall invite him well in advance, and he could see to it that the election process is going on smoothly. If necessary, the District Revenue Officer may arrange for police protection in that regard.
22. Untrammeled and uninfluenced by any of the observations made by this Court in disposing of these writ petitions, the Commissioner, Hindu Religious and Charitable Endowments Department, shall be at liberty to dispose of the pending matter before him in the form of affidavit filed by Muthuraman Poosari, dated 07.10.2008, as per law, purely on merits.
23. With the above directions, these writ petitions are disposed of. No costs. Consequently, connected miscellaneous petitions are closed."
12. Pursuant to the said order, the then Chairman Rajendra Poosari through a telegram dated 21.10.2008 informed the District Revenue Officer, Virudhunagar about the election to be conducted. Seeking some clarification, the District Revenue Officer, Virudhungar, by her letter dated 22.10.2008 sought to postpone the election. However, the election seems to have been conducted on 23.10.2008 and S.R.M.Ramamurthi Poosari, the petitioner in W.P.No.19636 of 2009 was elected as Chairman of the Board of Trustees. The fourth respondent viz., the Executive Officer of Arulmigu Mariamman Thirukkoil, Irukkangudi, seems to have been present at the instance of the Commissioner, H.R. & C.E., during the election.
13. Thereupon, the fifth respondent in both the writ petitions viz., S.Sethulingam Poosari seems to have filed a suit and obtained interim orders and thereafter, the same was challenged in a revision before this Court in C.R.P.No.4051 of 2008. In the said revision, interim suspension of the order of injunction given by the Civil Court was granted and the suits were directed to be disposed of.
14. M.P.No.1 of 2009 in W.P.No.9157 of 2008 at the instance of the Government, Commissioner and the Joint Commissioner, H.R. & C.E., seeking clarification of the order made in W.P.Nos.9157 and 9159 of 2008 was filed. However, the same was dismissed. The order made thereunder is usefully extracted here under:-
" The above miscellaneous petitions have been filed to clarify the common order dated 20.10.2008 made in W.P.(MD) Nos.9157 and 9159 of 2008.
2. The matter pertains to an election to be conducted to the Chairman and members of trustees of the fourth respondent temple. This Court by a detailed order dated 20.10.2008 has disposed of both the writ petitions giving various directions.
3. The present petitions have been filed by the petitioners setting out certain factual details and contending that the directions issued by this Court had not been given effect to. It is further stated in the affidavit that the directions given in the order has not been strictly followed and it has been violated by the petitioners therein and therefore, the present petitions have been filed seeking clarification as well as for further directions by this Court.
4. In my view, as the writ petitions have been finally disposed of, any person who is aggrieved by such order is entitled to file an appeal or seek such other remedy available to him. A violation or non compliance of an order passed by this Court cannot give raise to a cause of action to seek for clarification of the order. Ultimately, the Government and the Hindu Religious and Charitable Endowments Department, have sufficient powers under the Act to issue necessary orders based on such elections which have been conducted. Therefore, there is no need to clarify the order and in my view that order is clear and it is always open to the Government and the Department to initiate appropriate action in accordance with law. In view of the above these petitions are dismissed."
15. Thereupon, the second respondent had passed the impugned order dated 18.09.2009 setting aside the election held on 23.10.2008 and holding that the election shall be conducted after following all the relevant rules in the presence of the District Revenue Officer, Virudhunagar. The said order is under challenge in W.P.No.19636 of 2009. By an order dated 23.09.2009, the said Sethulingam Poosari was appointed as a Fit Person / Chairman of the Board of Trustees. The said order is under challenge in the other writ petition viz, W.P.No.20146 of 2009.
16. The first and foremost contention that was raised on behalf of the respondents, which deserves to be considered is, whether the writ petitions could be entertained in view of the alternative remedy available under the said Act. Section 114 of the said Act contemplates filing of the suit.
(a) Mr.R.Gandhi, learned Senior Counsel appearing for the contesting respondent viz., 5th respondent in both the writ petitions as well as Mr.T.Chandrasekaran, learned Special Government Pleader appearing for the Department vehemently contended that when an alternative remedy is available, the petitioners cannot approach this Court by filing the present writ petitions exercising the power under
Article 226 of The Constitution of India.
(b) On the other hand, it was contended on behalf of the petitioners that such an alternative remedy, if not effective or if the impugned orders were passed violating the principles of natural justice, without availing the alternative remedy, a writ petition could be maintained before this Court.
(c) Anxiously considered the said contention raised in this regard. However, I am of the considered view that the said contention raised by the contesting respondent viz., fifth respondent in both the writ petitions as well as the Department, has to be rejected on the following grounds:-
(i) If the impugned orders have been passed violating the principles of natural justice, still the parties cannot be driven to exhaust the alternative remedy available under the said Act. In the case on hand, the Commissioner, H.R. & C.E., has passed the order dated 18.09.2009 setting aside the election already conducted without even notice to the persons, who have been elected thereby violated the principles of natural justice.
(ii) Further, the alternative remedy available should be effective and efficacious. To drive the parties to file a suit to set at naught the order passed by the Commissioner, H.R. & C.E., who has set aside the election, would not be efficacious remedy, since it will take very number of years to see the finality in the suit.
(d) Hence, on the grounds set out above, I am of the considered view that even though there exists an alternative remedy, the parties cannot be driven to exhaust the same. Thus, the contention raised by the Department as well as the fifth respondent in both the writ petitions, is liable to be rejected and accordingly, rejected.
17.1. The next contention that has been raised on behalf of the petitioners are that the Commissioner, H.R. & C.E., had cancelled the election already held, by his proceedings dated 18.09.2009, without due notice to them and without hearing them. It is nobodys case that the Commissioner, H.R. & C.E., had passed the impugned order canceling the election after due notice to the persons who have been elected. The impugned order dated 18.09.2009 would reveal that two references were made thereunder viz.,
(i) The letter of the outgoing Chairman of the Board of Trustees dated 23.10.2008; and
(ii) The letter of one Ramamurthy Poosari, who has been elected in the election held on 23.10.2008.
17.2. Absolutely, the impugned order does not disclose that an opportunity was given to the elected Chairman of the Board Trustees before passing the said order. The only ground that was taken by the Commissioner, H.R. & C.E., was that the election was not conducted in the presence of the District Revenue Officer, Virudhunagar, as directed by the Madurai Bench of the Madras High Court in W.P.Nos.9157 and 9159 of 2008. Even assuming that the election was conducted not inconsonance with the orders made thereunder, that may not give raise to the Commissioner, H.R. & C.E., to set at naught the election that was already conducted. Even assuming that could be the reason, the same should have been done after due notice to the concerned persons before canceling the election.
18. This leads to the next question as to whether such notice is necessary. To substantiate whether the Commissioner, H.R. & C.E., has got such power and under what provisions he has got such power, Mr.T.Chandrasekaran, learned Special Government Pleader appearing for the Department would submit that the supervisory power is available with the Commissioner as per Section 23 of the said Act. Section 23 of the said Act reads as follows:-
Section 23:- Power and duties of the Commissioner in respect of temples and religious endowments:- Subject to the provisions of this Act, the administration of all temples (including specific endowments attached thereto) and all religious endowments) shall be subject to the general superintendence and control of the Commissioner and such superintendence and control shall include the power to pass any orders which may be deemed necessary to ensure that such temples and endowments are properly administered and that their income is duly appropriated for the purposes for which they were founded or exist:
Provided that the Commissioner shall not pass any order prejudicial to any temple or endowments unless the trustees concerned had a reasonable opportunity of making their representations."
18.1. As per the above provisions, the Commissioner no doubt has got general power over administration of the temple and could pass any order which may be deemed necessary, however, proviso to Section 23 makes it very clear that the said power can be exercised by him only after giving a reasonable opportunity to the concerned persons for making their representations.
18.2. Considering the discussions made above, I am of the considered view that the Commissioner, H.R. & C.E., ought to have passed an order after hearing the parties concerned and failure to do so is a clear violation of the principles of natural justice.
18.3. In view of the above stated position, the impugned order dated 18.09.2009 of the second respondent is liable to be set aside.
19. The next question that arises for consideration is, whether the first respondent viz., the Government is justified in appointing the Fit Person / Chairman of the Board of Trustees. The said order also points out that the second respondent pointed out that election was originally conducted without the presence of the District Revenue Officer, Virudhunagar, thereby violating the orders made in W.P.Nos.9157 and 9159 of 2008. The order in question was made only on the recommendation made by the second respondent. The discussions made above will amply prove that the second respondent has passed the impugned order dated 18.09.2009 without affording opportunity to the petitioner which deserves to be set aside. While so, on his recommendation, the fifth respondent was appointed as temporary Chairman without any rhyme or reason. It is not made clear why the fifth respondent was appointed so. Hence, the order of the first respondent has to go.
20. However, I am of the considered view that the election ought to have been conducted in the presence of the District Revenue Officer, Virudhunagar. Even assuming that he has been informed of the election and that he has not chosen to attend the election raising certain doubts, election should not have been conducted without the presence of the District Revenue Officer, Virudhunagar, since in the order made in W.P.Nos.9157 and 9159 of 2008, it was made clear that the election shall be conducted in the presence of the District Revenue Officer, Virudhunagar.
21. Mr.K.Alagirisamy, learned Senior Counsel appearing for the petitioner in W.P.No.19636 of 2009 as well as Mrs.Hema Sampath, learned Senior Counsel appearing for respondents 7 and 8 in W.P.No.19636 of 2009 and Mr.R.Shanmughasundaram, learned Senior Counsel appearing for the petitioners in W.P.No.20146 of 2009 have made it very clear that the election could be conducted henceforth in the presence of the District Revenue Officer, Virudhunagar and also in the presence of an Advocate Commissioner to oversee the election. However, Mr.T.Chandrasekaran, learned Special Government Pleader appearing for the Department as well as Mr.R.Gandhi, learned Senior Counsel appearing for the fifth respondent in both the writ petitions opposed the conduct of election.
22. In view of the reasons given above, I am of the considered view that the matter could be sorted out by directing the election to be conducted in the presence of the District Revenue Officer, Virudhunagar as well as in the presence of an Advocate Commissioner, who could be appointed by this Court. None would be prejudiced by such election.
23. Accordingly, Mr.D.Sivaraman, Advocate, No.38, High Court Law Chamber, Madurai 23, is appointed as an Advocate Commissioner to oversee the process and to conduct the election after intimating the same to all the Trustees. The Advocate Commissioner shall cause a three days notice in advance to the District Revenue Officer, Virudhunagar, who shall be present at the time of the election without raising any doubt or objection. He can also seek police protection for smooth functioning of the election.
24. Thus, in nutshell, it is held that --
(a) The writ petitions filed challenging the order of the second respondent, the Commissioner, H.R. & C.E., dated 18.09.2009 and the order of the first respondent Government dated 23.09.2009, appointing the fifth respondent as Fit Person / Chairman of the Board of Trustee temporarily till election is conducted, is maintainable without exhausting alternative remedy on the reasonings stated in para 16 of the judgment.
(b) The order of the second respondent without notice to the petitioners, is liable to be set aside on the reasonings set out in para 17.1 and 17.2.
(c) Notice by the second respondent to the petitioners are necessary before passing such impugned order dated 18.09.2009 for the reason set out in paragraphs 18, 18.1 to 18.3.
(d) On the death of some of the respondents, the writ proceeding does not abate as a whole but abates against the deceased respondents.
(e) Mr.D.Sivaraman, the Advocate Commissioner shall conduct the election for the board of trustees of the temple in question within one month from the date of receipt or production of a copy of this order, whichever is earlier. He shall conduct the election in the presence of the District Revenue Officer, Virudhunagar as indicated in para 23.
(f) A sum of Rs.30,000/- (Rupees thirty thousand only) has to be paid by the petitioners directly to the Advocate Commissioner as remuneration.
25. Both the writ petitions are ordered accordingly. No order as to costs. Consequently, connected miscellaneous petitions are closed.
sbi To
1.The Secretary to Government, Hindu Religious and Charitable Endowment Department, Fort St. George, Chennai.
2.The Commissioner, Hindu Religious and Charitable Endowment Department, Nungambakkam High Road, Chennai-34.
3.The Joint Commissioner, Hindu Religious and Charitable Endowments Department, Sivagangai.
4.The Executive Officer, Arulmigu Mariammal Thirukkoil, Irukkangudi, Sattur Taluk, Virudhunagar District