K. Ekambaram and M. Kailasam Vs The Commissioner, HR and CE, Administration Department, The Executive Officer, Sri Sundareswara Swami Temple, V. Sankaran and T. Sankar

K.A. Swami, C.J.@mdashThe decision in Writ Petition No. 13210 of 1994 will govern the Writ Appeal No. 1324 of 1994 as the said appeal is preferred against an interim order passed in the Writ Petition in question. Hence, both the cases are heard together. The Petitioners sought for quashing the order bearing No. Pro. R. Dis.51549/94 (LI) dated 15.7.1994 passed by the first Respondent appointing the second Respondent as the Executive Officer of the temple in question known as, Arulmigu Thirunageswaraswamy Temple, Thirunageswaram village, Kundrathur, Sriperumbudur Taluk, Chengalpattu M.G.R. District. The Appellants and two others, viz., Respondents - 3 were appointed and trustees of the temple in question. Of course, another trustes was also appointed, but he resigned. Therefore, at present, there are only four trustees. They were appointed on 15.2.1993 for a period of there years, in exercise of the power u/s 47 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, hereinafter referred to as ''the Act''. After the appointment, the administration of the temple vested in them and they were carrying on the administration of the temple. In the meanwhile, by the impugned order, the first Respondent has appointed the second Respondent as the Executive Officer on the ground that it is necessary for the better management of the temple. The appointment has been made u/s 45(1) of the Act. Annexure to the impugned order specifies the powers and functions of the Executive Officer. As per that, the Executive Officer shall be in charge of the immovable properties of the institution. He shall be the person entitled to receive all incomes in cash and kind and he shall be entitled to disbursement and incurring of the expenditure, on behalf of the institution. Thus the Executive Officer has been empowered with all the powers of the trustees. Consequently, the trustees are rendered without any power or authority. The contention of the Petitioners is that as they have been appointed as trustees for a period of three years, pursuant to the scheme framed for the temple on 5.8.1981 under O.A. No. 65 of 1980 by the Deputy Commissioner in exercise of his power, u/s 64(1) of the Act, they are entitled to function as trustees and the administration of the temple vests in them. As a result of the appointment of the Executive Officer, all the powers and functions of the trustees have been taken away by the Executive Officer and they are left with no power. Thus, they have become nominal trustees, without any power and functions.

2. On the contrary, it is the contention of the learned Government Pleader appearing for the Respondents-1 and 2, that u/s 45(1) of the Act, power is vested in the Commissioner to appoint the Executive Officer, if he considers that such appointment is necessary for the better management of the temple, that there are several misdeeds committed by the trustees and that among the trustees there is no co-operation.

3. Point for consideration in the light of the contentions urged by both sides, is whether any Executive Officer could have been appointed without notice to the Petitioners.

4. It is not necessary in this case to go into, the question whether the temple in question is a denomination temple. From the scheme produced at page-1, it is also not possible to hold that the temple is a denominational temple. Paras-2 and 3 of the scheme read thus:

The administration of Arulmigu Nageswaraswamy Devasthananm, Thirunageswaram, Kundrathur, Sriperumbudur Taluk, Chengalpettu District and all properties movables and immovables which belong to have been or hereafter be given or dedicated or endowed thereto or acquired for the temple, shall in general or to any one or more of the deities in particular, vest in a Board of Trustees not exceeding five and not less than three who shall be appointed from and amongst the members of the Senguntha Mudaliars of the village of Thirunageswaram alias Kunrathur of Sriperumbudur Taluk, Chengalpattu District by the appropriate authorities in accordance with the provisions of the Act.

In all other respects, the administration shall be carried on in accordance with the provisions of the H.R. & C.E. Act and Rules in force from time to time.

It is clear that the scheme provides that the trustees should be appointed from amongst the members of Senguntha Mudaliars of the village of Thirunageswaram alias Kundrathur of Sriperumbudur Taluk, Chengalpattu District But from this it does not follow that the temple is a denominational temple. However, one thing is clear that the trustees so appointed, pursuant to the scheme are not the hereditary trustees. They are the trustees appointed u/s 47 of the Act and in them, the administration of the temple vests as per the definition of the expression ''trustee'' contained in Section 6(22) of the Act which reads thus:

"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.

The tenure of the trustee is for three years. From the impugned order of the Commissioner, it is not possible to make out as to what is the reason that persuaded the Commissioner to appoint an Executive Officer, except stating that for the better management of the temple, the appointment of an Executive Officer is necessary. However, before us, it is not only contended, but also averred in the .counter filed on behalf of the first Respondent that the Petitioners have committed several misdeeds and have acted contrary to the interests of the temple and therefore, the interests of the temple is not at all safe, in their hands. It is also stated that the property worth several crores has not been safeguarded. Therefore, the interests of the temple is not safe. Hence, the Commissioner thought it necessary for better management to appoint the Executive Officer. The reasons that are spelt out from the counter-affidavit are the misdeeds of the trustees. Where the trustees are entitled to function for a period of three years, they cannot be removed without due notice and without holding an enquiry. They cannot be reduced to a non-entity by appointing an Executive Officer on the ground that they have committed certain misdeeds, contrary to the interests of the temple, without affording an opportunity to them.

Learned Government Pleader stressed on the provisions contained in Section 45(1) of the Act and also a decision of a learned single judge reported in M.E. Subramani and Others Vs. The Commissioner, Hindu Religious and Charitable Endowments (Administration) and Others, . A Division Bench of this Court in Commissioner, Hindu Religious and Charitable Endowments (Administration) Department, Madras Vs. K. Jothiramalingain and Another, has pointed put that the power u/s 45(1) of the Act has to be exercised with due care and caution and with all precautions which are necessary to safeguard the interests of the hereditary trustees. Of course, the decision has been rendered in the context of the right of the hereditary trustees. But, it is with reference to the provisions contained in Section 45(1) of the Act which can be exercised both in respect of the temples having the hereditary trustees and non-hereditary trustees appointed u/s 47 of the Act. Section 45(1) of the Act gives vast powers to the Commissioner. It opens with the non-obstante clause. Thus, the provision has the overriding effect on the (sic) provisions contained, in the Act and thereby it empowers the Commissioner, notwithstanding any other provisions contained in the Act, to appoint an Executive Officer, subject to such conditions as may be prescribed for any religious institution other than a math or a specific endowment attached to a math. When such a power is conferred, the scope and ambit of such power shall have to be determined with reference to other provisions contained in the Act and also the object which the Act intends to achieve and serve. It cannot be disputed that the Act is to consolidate the law relating to the administration and governance of Hindu Religious and Charitable Institutions and Endowments in the State of Tamil Nadu. In order to achieve that object, the Act provides for establishment of the Temple Administration Board, constitution of District Committees, creation of Authorities under the Act, religious institutions and its general provisions and in addition to this, it also deals with the Maths. Chapter-V provides for inquiries; Chapter-VI provides for notified religious institutions Chapter-VII provides for encroachments; Chapter-VIII provides for budgets, accounts and audit; Chapter-IX provides for finance; Chapter X provides for endowments and administration fund; Chapter-X-A provides for Devaswom Fund; Chapter-XI provides for miscellaneous matters and Chapter XII deals with general matters. The Chapter relating to religious institutions provides as to the appointment of trustees and their powers as per Section 6(22) of the Act, and they are vested with the administration of the temple. That being so, one of the objects of the Act is to vest the administration of the temple in the trustees. If the power u/s 45(1) of the Act has to be exercised, keeping in view that object whenever a Commissioner finds it necessary that Executive Officer has to be appointed on the ground that the trustees are not taking due care and caution and have failed to safeguard the interests of the temple, he can do so only on affording-an opportunity to the trustees. The ground for appointment is the one which affects the trustees, because it is alleged against them that they have failed to safeguard the interests of the temple. Though by appointment of the Executive Officer, the trustees are not removed from the office, but they are reduced to a non-entity. It is not possible to hold that Section 45(1) of the Act excludes the application of principle of natural justice when an Executive Officer is to be appointed on the ground of failure of trustees in performing the functions, an action against trustees cannot be taken or they cannot be deprived of his rights without affording an opportunity to explain the allegations made against him them, depriving of the right vested in them as trustees. In the instant case, it is not disputed that no notice was issued to the trustees and no opportunity was given to them to show cause as to why an Executive Officer should not be appointed because of their failure to safeguard the interests of the temple or because of several acts of misconduct alleged against them, affecting the interests of the temple. In a decision reported in M.E. Subramani and Others Vs. The Commissioner, Hindu Religious and Charitable Endowments (Administration) and Others, , learned single judge has approached the matter reading the provisions contained in Section 45(1) of the Act in a literal manner without bearing in mind, whether an Executive Officer can be appointed depriving the right of trustees, to manage the affairs of the temple without affording an opportunity to them. Learned single judge proceeded on the basis that the provisions contained in Section 45(1) of the Act did not provide for affording an opportunity to the trustees before an "Executive Officer was appointed. In paras-5 and 6 of the judgment, learned single judge has stated thus:

Regarding the second contention that since no conditions have been prescribed by the Rules subject to which the power u/s 46 has to be exercised, the Commissioner cannot exercise the power, the Learned Counsel states that the prescribing of the conditions is a condition precedent for the exercise of the power u/s 45(1). In support of this contention, Learned Counsel places reliances on a decision of this Court in O. Radhakrishnan and Another and S. Chettiar and Others Vs. Manickam and Others, and S. Chettiar v. Manickam 87 L.W. 124. In that case, the Court had to consider he scope of Section 45(4) enables the Commissioner to modify or cancel any existing scheme in respect of a math or a specific endowment subject to such conditions and restrictions as may be prescribed. But, this was subject to the following Proviso, viz., ''provided that such cancellation or modification of a scheme in force shall be made only subject to such conditions and restrictions as may be prescribed''. In the context of the said provision, the Court held that, as the language in Section 65(4)(a) of the Act stands, the Commissioner has no power to modify or cancel a scheme on an application made by a party and that the power conferred on the Commissioner has to be exercised suo motu only. The Court also held that so far as the Proviso to Section 65(4)(a) is concerned, it does not provide -merely a mode of exercising the power, but it really constitutes a restriction or circumscription on the exercise of the power itself, and, therefore, without there being the prescription therefore, the power itself is incapable of being exercised. The language of Section 65(4)(a) specifically says that the power of modification or cancellation of an existing scheme u/s 65(1) shall be exercised only subject to such conditions and restrictions as may be prescribed and it is because of that peculiar wording, the proviso construed as limiting the power u/s 65(1). But, Section 45(1) is in a different form. It says "The Commissioner may appoint, subject to such conditions as may be prescribed, an Executive Officer for any religious institution, either a mutt or specific endowment attached to a mutt". Having or regard to language used in this Section, it is not possible to construe the words, subject to such conditions as may be prescribed, as being a condition precedent for the exercise of the power u/s 45(1). If the conditions have been prescribed, then the power has to be exercised only subject to those conditions. But, if the conditions are not prescribed, it cannot be said that the power cannot, at all, be exercised. The power conferred on the Commissioner to appoint an Executive Officer by the Legislature cannot be said to have been taken away by the failure or inaction on the part of the Government to prescribe the conditions. The expression, ''as may be prescribed'' occurring in the Section indicates that the rule making authority may or may not prescribe the conditions. If the conditions are prescribed then, the power u/s 45(1) is subject to those conditions. But, if no conditions are prescribed, then, the power of the Commissioner can be exercised without any restriction, of course, subject to the other guidelines indicated by the policy and object of the Act. In my view, the Learned Counsel is not right in the submission mat Section 45(i) cannot be invoked by the Commissioner to appoint an Executive Officer so long as no conditions have teen prescribed as contemplated by that Section by the rule making authority.

As regards the third contention that the impugned order is vitiated for the reason that the Commissioner has not given any show cause notice to the Petitioners nor the administration has been found defective, it is seen that Section 45(1) does not, in terms, provide that the power can be exercised only after issuing the show cause notice to the existing trustee or after conducting an enquiry into the state of affairs of the temples. In this case, the order proceeds en the basis that the appointment of an Executive Officer is necessary for the better and efficient administration of the temples. It has been recently held by this Court in W.P. No. 5215 of 197S that if the Commissioner finds that the appointment of an Executive Officer for a particular religious institution is necessary for the better and efficient management of that institution, be can proceed to appoint the Executive Officer without any enquiry into the affairs of the temples, or without any notice to the existing trustees. I have to, therefore, reject this contention of the counsel for the Petitioner as well.

5. We find it is very difficult to agree with the view which fails to take into consideration the application of principles of natural justice. The provisions contained in Section 45(1) of the Act do not exclude the application of the principles of natural justice. Therefore we are of the view that the said decision does not lay down the law correctly and as such, it requires to be overruled. It is accordingly overruled for the reasons stated above. The writ petition has to succeed. Accordingly, the writ petition is allowed. The order dated 6.9.1994 passed in W.M.P. No. 24426 and W.M.P. No. 20037 of 1994 filed in W.P. No. 13210 of 1994 and also the order passed in the writ petition and also the order passed by the first Respondent dated 15.7.1994, are quashed. Liberty is reserved to the Commissioner to proceed in the matter, in accordance with law and in the light of the observations made in this order. In view of the order passed in the writ petition, the Writ Appeal becomes infructuous and it is accordingly dismissed.