1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 11.04.2011 CORAM: THE HONOURABLE MR. JUSTICE S.RAJESWARAN and THE HONOURABLE MR. JUSTICE G.M.AKBAR ALI W.A.(MD)No.359 of 2011 and M.P.(MD)No.1 of 2011 and CAVEAT (MD)No.134 of 2011 1.The Commissioner, Hindu Religious and Charitable Endowments Department, Chennai 600 034. 2.The Joint Commissioner, Hindu Religious and Charitable Endowments Department, Madurai. 3.The Assistant Commissioner, Hindu Religious and Charitable Endowments Department, Dindigul, Dindigul District. ...Appellants/Respondents 1 to 3 Vs. 1.V.S.Kuppanna Gounder ..1st Respondent/Writ Petitioner 2.The Thackar (Fit person), The Executive Officer, A/m Gobinathasamy Koil, Reddiar Chatram, Dindigul District. ..2ND Respondent/4th Respondent 3.V.Balakrishnan ...3rd Respondents/5th Respondent PRAYER: The Writ Appeal is filed under Clause 15 of Letters Patent, against the order of this Court in W.P.(MD)No.576 of 2009 dated 16.07.2010 under Article 226 of the Constitution of India to issue writ of Certiorari calling for the records of the impugned order dated 13.01.2009 made in Na.Ka.No.133/2009/A2 on the file of the Assistant Commissioner Hindu Religious and Endowment and Clariable Department, Dindigul and quash the same. For Appellants : Mr.S.C.Herold Singh, G.A. For Mr.K.M.Vijayakumar,AGP For Respondents : Mr.M.Sundar for R1 Mr.K.Govindaraj for R2 Mr.S.Anand Chandrasekar for Mr.Sivakumar ASGO for R3 https://hcservices.ecourts.gov.in/hcservices/ 2 JUDGMENT (Judgment of this Court was delivered by S.RAJESWARAN,J.) This Writ Appeal has been filed by the Hindu Religious and Charitable Endowments Department against the order dated 16.07.2010 passed by this Court in W.P.(MD)No.576 of 2009, setting aside the order passed by the Hindu Religious and Charitable Endowments Department on 13.01.2009 appointing a fit person to the temple viz., Arulmighu Sadasara Shanmuganathar Temple, Karuppatti Rock, Veriyappur Village, Oddanchatram Taluk, Dindigul District. 2.The facts of the case are as follows: The appellant/Assistant Commissioner, Hindu Religious and Charitable Endowments Department, Dindigul by a proceeding dated 13.01.2009 appointed the 2nd respondent/ Executive Officer, Hindu Religious and Charitable Endowments Department, as a fit person to the said temple. One V.S.Kuppanna Gounder claiming to be the pujari of the said temple for a number of years has challenged the order of appointment of a fit person to the said temple by filing the Writ petition in W.P.(MD)No.566 of 2009. 3.A counter affidavit was filed by the Assistant Commissioner, who passed the impugned order for appointing a fit person to the said temple. 4.The learned Single Judge while considering the said Writ petition filed by the pujari of the temple held that the temple has not been declared as public temple and consequently not brought under the control of HR&CE department and finally held that the order is not sustainable. It was also found by the learned Single Judge that no opportunity was provided to the Writ petitioner before appointing a fit person. The learned Single Judge has further found that the fit person was appointed on the allegation that there has been a complaint regarding misuse of the funds collected from public. The learned Single Judge has also found that though the department claims that notice has been issued on 15.12.2008, the allegation with regard to mismanagement has not been adverted to by the department before appointing a fit person. Therefore, the learned Judge has held that when there was no enquiry conducted with regard to the said allegation, appointing a fit person that too when a person/writ petitioner claims to be a pujari cannot be sustained. Therefore, on that score, the learned Judge set aside the impugned order of the department appointing a fit person and allowed the Writ petition. Challenging the same, this Writ Appeal has been filed by the appellants/HR&CE Department. 5.Today we have heard the learned counsel appearing for the appellants/HR&CE Department, the learned counsel appearing for the 1st respondent/Writ petitioner, the learned counsel appearing for the 2nd respondent/fit person appointed by the Department and the learned counsel for the 3rd respondent/worshipper, who is interested in the protection and promotion of the temple concerned. We have perused the materials available on record. 6.At the outset, the learned counsel appearing for the 1st respondent would submit that when the Writ petitioner claiming himself to be a pujari for a number of years and managing the temple in all aspects, there is no necessity for the department to appoint a fit person. https://hcservices.ecourts.gov.in/hcservices/ 3 Further, he adds that the temple is a very small temple not having any income and even public worshipping is also very limited. It is submitted that the Writ petitioner has obtained a decree in a civil suit filed by him conferring the right of pujari on him. On that strength, he has been making representations to the department with regard to the encroachment into the temple property by the neighbours. He adds that only in this regard, notice was issued by the department on 15.12.2008. But, no notice was even issued by the department with regard to the alleged mismanagement of the funds or administration of the temple. Whileso, arbitrarily and unilaterally an order has been made by the HR&CE Department by appointing a fit person. According to the learned counsel, the appointment of fit person does not arise in this case and has been made contrary to the provisions of the HR&CE Act. 7.He relies on a decision of a Division Bench Judgment of this Court reported in 1964(2) MLJ 560 (K.S.Ramamurti Muthuswami Gurukal Vs. Aiyaswami Thevar and 16 others) to reiterate that even in case of small temples where the temple property is of insignificant value and the income is hardly sufficient even to meet the routine expenses of the temple, if the archaka or the pujari is left with the management of the temple lands and the affairs of the temple without any interference by the villagers for a long number of years, it must be presumed that with the consent and acquiescence of the worshippers of the village, the pujari is the trustee of the temple as well. 8.By relying on the judgment, the learned counsel for the Writ petitioner would submit that this case squarely applies to the facts of this case in hand, as the pujari/Writ petitioner has been accepted by the worshippers for a long number of years and the temple is also a small and insignificant one having no income and he has been attending to the affairs of the temple in entirety without any complaint whatsoever, he is deemed to be a trustee of the temple. 9.Whileso, based on a complaint with regard to mismanagement of the temple, the Department, without serving a notice on the pujari of the temple/the Writ petitioner has appointed a fit person in the impugned order. He adds that this order gives right to civil consequences. Therefore, he submits that the order has been made without hearing him which is bad in law and is liable to be set aside, and the lack of opportunity to the Writ petitioner has also been adverted to by the learned Single Judge while allowing the Writ petition. 10.Though the learned counsel appearing for the fit person and the learned counsel appearing for the department and the learned counsel appearing for the worshipper would support the order passed by the department to the effect that by appointing a fit person, rights of the pujari/Writ petitioner are not affected and he can always assist the fit person in the administration and management of the temple. Therefore, according to them no prejudice would be caused to the Writ petitioner. 11.We have heard the rival submissions carefully. 12.The temple in question is a smalll temple and not brought under the control of the HR&CE Department. The Writ petitioner is a pujari and he is said to have obtained a decree from a civil court declaring him as https://hcservices.ecourts.gov.in/hcservices/ 4 a pujari. He has been attending to the administration of the temple also. Whileso, without affording any opportunity to him to put-forth his case the order appointing a fit person has been passed. It is admitted by the department and others that no notice was given to the pujari before passing the impugned order. But, it is their case that no need to issue any notice to the pujari and the earlier notice issued on 15.12.2008 itself would be sufficient notice for pujari to put-forth his case. They also rely upon Section 49 of the Hindu Religious Endowment Act to show that in any religious institution, which is not included in the list published under Section 46, the Assistant Commissioner shall have the power to appoint trustees including fit persons, etc. But, this Section read along with Section 47(ii) of the Act, provides that before appointing a trustee, notice must be given to the person concerned. 13.Therefore, it is an admitted position that the Writ petitioner claims to be a pujari of the temple has not been heard by the department before appointing the fit person. 14.Hence, we are of the view that a notice has to been given to the pujari before appointing a fit person to the temple in question. 15.In the result, while dismissing the Writ Appeal filed by the Department and upholding the order passed by the learned Single Judge, we remit the matter back to the department for the purpose of issuing notice of hearing to the 1st respondent/Writ petitioner and others concerned if any, and after personal hearing and conducting an enquiry and the department should pass suitable orders on merits. 16.Since it is alleged by the appellants/Department that the temple funds are misused and mismanaged as the petitioner has been collecting money without any proper account from the public, till an order is passed by the department, after conducting a fresh enquiry, the 1st respondent/Writ petitioner is directed not to indulge in any form of collection of funds from the public or any one. However, he shall continue to be the pujari of the temple and attend to the affairs of the temple. The HR&CE Department is directed to issue notice to the 1st respondent/Writ petitioner and others, if any, within 15 days from the date of receipt of a copy of this order and thereafter, the appellant/Department shall pass final order within one month. 17.It is made clear that we are not expressing any opinion with regard to the character of the temple. We leave all the questions open to be decided by the department in this aspect. We also reiterate that till final order is passed by the department in the manner aforesaid, the Writ petitioner shall not indulge in any other activities other than being a pujari of the temple. 18.In the result, the Writ Appeal is disposed of in the above terms. No costs. Consequently, connected M.Ps.are closed. nbj Sd/- Assistant Registrar[CO] /True copy/ Sub Assistant Registrar https://hcservices.ecourts.gov.in/hcservices/ 5 To 1.The Commissioner, Hindu Religious and Charitable Endowments Department, Chennai 600 034. 2.The Joint Commissioner, Hindu Religious and Charitable Endowments Department, Madurai. 3.The Assistant Commissioner, Hindu Religious and Charitable Endowments Department, Dindigul, Dindigul District. +1 cc to Mr.S.Siva Thilakar, Advocate Sr.No.13385. +1 cc to Saravabhuman Associates, SR.No.13060. +1 cc to Mr.k.Govindarajan, Advocate SR.No.13386. +1 cc to Special Government Pleader, SR.No.13404. W.A.(MD)No.359 of 2011 Dated:11.04.2011 5P/8C RPB 28.04.2011 https://hcservices.ecourts.gov.in/hcservices/