IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 07.07.2010 CORAM: THE HONOURABLE MS. JUSTICE K.B.K.VASUKI W.P.No.25371 Of 2009 and MP.No.1 of 2009 A.Munusamy .. Petitioner Vs. 1.The Joint Commissioner HR & CE (Admn) Dept., Coimbatore – 18. 2.The Assistant Commissioner HR & CE (Admn) Dept., Coimbatore – 18. 3.Fit person/Executive Officer, A/m.Mahaveer Anajanayar Thiru Koil, VOC Park, Erode, Erode District – 638 003 .. Respondents Prayer : Writ Petition is filed under article 226 of the Constitution of India praying for issuance of Writ of Mandamus to declare the direction given by the 1st respondent in the notice dated 10.11.2009 in OA.No.35 of 2007 to the respondents 2 and 3 "Second Respondent Fit person/Executive Officer A/m. Mahaveera Anjaneyar Temple, VOC, Park Erode Town and Taluk, Erode District is instructed to take charge of the above temple immediately pending confirmation of the scheme before 15.11.2009 and report" and "The Assistant HR&CE Erode to instruct the Fit person to take charge of the above temple immediately pending confirmation of the scheme before 15.11.2009 and report" as illegal and null and void. For Petitioner : Mr.G.sukumaran For Respondents : Mr.T.Chandrasekaran, Special Government Pleader for R1 & R2 O R D E R On consent, the writ petition is taken up for final hearing. The writ petition is directed against the instruction given by the first respondent to the Assistant Commissioner, HR & CE and Fit person/Executive Officer, A/m.Mahaveer Anajanayar Thiru Koil, VOC https://hcservices.ecourts.gov.in/hcservices/ Park, Erode, who are the respondents 2 and 3 herein for taking over the charge of A/m Sozheswarar Temple situated at Cauvery River land, Karungalapalayam, Erode. 2. The brief facts which are relevant herein are: The petition mentioned Sozheswarar Temple is situated at Erode. The temple is in existence from time immemorial and it was in dilapidated condition and the renovation work of the temple was adopted by one committee called Sozheswarar Alaya committee having the petitioner's father as its President and temple thiruppani was held during 1971 with the funds collected from the worshippers and the same committee took over the management of the temple affairs and continued to look after the same. 3. Whileso, the second respondent has appointed the third respondent as the fit person of the temple by his proceedings dated 19.04.2002 and till 2007 as per the letter dated 10.09.2007 addressed by the third respondent to the management committee the management of the temple was not taken over by the third respondent/fit person and despite its due knowledge of the appointment of fit person the committee in management of the temple did not comply with the request of the respondents 2 and 3 to allow the fit person to take over the same. 4. In the meanwhile, the petitioner and others created one trust in the name of 'Sivalaya Vazhipattu Kuzhu Arakkattalai Trust' on 24.01.2007 and registered the trust deed as document No.26 of 2007 and as per one of the clauses in the trust deed the administrative members of the trust has its Board of trustees consisting of the petitioner as its President, one Vice-President, Secretary, Additional Secretary, Treasurer and 10 Executive committee members totally numbering 15. The committee has without handing over the temple charge to the fit person filed Revision in R.P.No.3 of 2007 before the first respondent Joint Commissioner, HR & CE to stay the order of appointment of the fit person so as to enable the Board of trustees to carry on the management and affairs of the temple without any hindrance from any quarters and the operation of the order of Assistant Commissioner is by order of the first respondent dated 29.10.2007, stayed pending disposal of the revision petition R.P.No. 3 of 2007. 5. The petitioner and five others who are the office bearers of Sivalaya Vazhipattu Kuzhu Arakkattalai Trust filed O.S.No.35 of 2007 for framing scheme for the management of the temple affairs and the petitioners in the scheme suit arrayed the Assistant Commissioner, HRCE and the fit person who are the respondents 2 and 3 herein as the respondents 1 and 2 therein, and the scheme suit was duly contested and draft scheme was framed and pending confirmation of the same, before the first respondent objections were filed against the same by the 4th petitioner in O.A.No.35 of 2007 and one K.C.Govindaraj and https://hcservices.ecourts.gov.in/hcservices/ notice dated 10.11.2009 was issued by the Joint Commissioner to the applicants in O.A.No.35 of 2007, objectors, fit person and the Assistant Commissioner, HRCE for enquiry and in the same notice the Joint Commissioner has instructed both the fit person and the Assistant Commissioner, HRCE for taking over the charge of the above temple immediately by the fit person. 6. The particular portion of the notice under which the fit person is instructed to take over the charge of the temple pending confirmation of the draft scheme is now challenged herein by one of the applicants in O.A.No.35 of 2007. 7. Heard the rival submissions made by the learned counsel for the petitioner and the learned Special Government Pleader for the respondents. 8. According to the petitioner, the temple was originally managed by Sozheeswarar Alaya Committee and after the creation of Sivalaya Vazhipattu Kuzhu Arakkattalai Trust during 2007, the Board of trustees of Vazhipattu Kuzhu continued to be in the management of the temple affairs and Vazhipattu Kuzhu Arakkattalai Trust has also challenged the appointment of third respondent as fit person by the first respondent in R.P.No.3 of 2007 and pending such proceedings and pending confirmation of draft scheme the first respondent has no authority to instruct the fit person to take over the charge of the temple affairs. It is also contended by the learned counsel for the petitioner, that in pursuance of such order the fit person has forcibly occupied the office of the Arakkattalai inside the temple premises and thereby the Arakkattalai trust is prevented from looking after the affairs of the temple amounting to illegal interference with the management of Arakkatalai. Whereas, the respondent officials would strenuously argue that the appointment of fit person was though stayed pending disposal of R.P.No.3 of 2007, proceedings in R.P.No.3 of 2007 came to be closed, with the passing of draft scheme decree and serious objections are filed against the draft scheme and pending confirmation of the same, it is necessary for the respondent officials to protect the interest of the temple as well as the worshippers and the fit person whose appointment is till date not set aside is the competent person to be entrusted with the administration and management of the temple and the impugned instruction is issued by the first respondent only by exercising the power vested upon him under section 49 of the HRCE Act. 9. The materials available herein would disclose that the appointment of the third respondent as fit person of the temple in question is till date not set aside. R.P.No.3 of 2007 filed against appointment of fit person is only closed without passing any final orders. That being so, this Court is of the reasonable view that without going into the contention of the petitioner as to whether the temple administration is forcibly taken over by the third https://hcservices.ecourts.gov.in/hcservices/ respondent/fit person the impugned instruction of the first respondent can be upheld for the following reasons: 10. The Sivalaya Vazhipattu Kuzhu Arakkattalai Trust is the creation of few individuals in their capacity as residents of Erode and as worshippers of the petition mentioned temple. The appointment of fit person is much before the creation of trust and the efforts made by the fit person to take over the temple management from the committee was successfully avoided by the so called Committee/Board of trustees. The Board of trustees having approached the appropriate forum for getting scheme decree is bound by the decision made thereon. As per relevant clauses of the draft scheme the temple will have not less than 3 and not more than 5, non hereditary trustees duly appointed by the authority concerned by inviting applications from the trust members and the managing trustee be selected from among the non hereditary trustees and the appointment of the trustees will come into force from the date on which the managing trustees is selected among them and thereafter, the management of the temple will be entrusted to the trustees so appointed. That being so, the petitioner and other members will not automatically get the right to be entrusted with the temple management and neither the petitioner nor other trust members can also claim any right to continue to be in the management of the temple. The draft scheme has also not authorised the petitioner and others to continue to be in temple management. 11. Under such state of affairs, the authority concerned is empowered to make due arrangement for the temple management during interregnum period till the temple administration is duly taken over by the newly appointed trustees, as per the scheme. As on today the temple has its duly appointed fit person who is also arrayed in such capacity by the petitioner and others in the scheme suit O.A.No.35 of 2007 and the draft scheme is made only after hearing both sides. If that is so, fit person appointed by the competent authority is the most competent person to be entrusted with the administration and management of the temple so as to avoid any dispute in this regard among individuals. In my considered view, the order of the first respondent suffers from no illegality which warrants interference by this court. 12. The writ petition is hence dismissed. No costs. Consequently, connected miscellaneous petition is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ tsh/vsm To 1.The Joint Commissioner HR & CE (Admn) Dept., Coimbatore – 18. 2.The Assistant Commissioner HR & CE (Admn) Dept., Coimbatore – 18. 3.Fit person/Executive Officer, A/m.Mahaveer Anajanayat Thiru Koil, VOC Park, Erode, Erode District – 638 003. 1 cc To Mr.G.Sugumaran, Advocate, SR.48537 1 cc To The Government Pleader, SR.49007 W.P.No.25371 Of 2009 and MP.No.1 of 2009 RK(CO) sra 15/07/2010 https://hcservices.ecourts.gov.in/hcservices/