IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.08.2008 CORAM THE HONOURABLE Mr.JUSTICE S. NAGAMUTHU Writ Petition No.3719 of 2008 and M.P.No.1 of 2008 Tmt.S.Hemalatha .. Petitioner -Vs.- 1 THE COMMISSIONR HINDU RELIGIOUS & CHARITABLE ENDOWMENT (ADMN) DEPT. CHENNAI NUNGAMBAKKAM HIGH ROAD CHENNAI-34 2 THE JOINT COMMISSIONER HINDU RELIGIOUS & CHARITABLE ENDOWMENT (ADMN) DEPT. SALEM 3 THE ASSISTANT COMMISSIONER/ EXECUTIVE OFFICER A/M SUGAVANESWARAR TEMPLE SALEM. .. Respondents PRAYER: Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of certiorari calling for the records relating to the impugned order of the first respondent herein issued in his proceedings Se.Nu.Na.Ka.No. 30802/1999 L.5 dt. 25.1.2008 in appointing the 3rd respondent herein as Executive Officer under sec. 45(1) of the Act in Arulmigu Sendraya Perumal temple pagalpatti Village omalur Taluk salem district and quash the same. For Petitioner : Mr.W.C.Thiruvengadam For Respondents : Mr.T.Chandrasekaran https://hcservices.ecourts.gov.in/hcservices/ ORDER Admit. 2.By consent of the learned counsel for both parties, the writ petition is disposed of. 3.The petitioner claimed to be the hereditary trustee of Arulmigu Sendraya Perumal temple, Pagalpatti Village, Omalur Taluk, Salem District. Previously, the petitioner’s husband Mr.K.C.Srinivasan was the hereditary trustee of the said temple. On levelling certain charges and after holding some enquiry, Mr.K.C.Srinivasan was dismissed from the said post. Thereafter, according to the petitioner, by means of succession, she has become the hereditary trustee of the said temple, within the meaning of Section 54(1) of the Tamil Nadu Hindu Religious and Endowments Act. The petitioner’s succession was also duly recorded. 4.While the petitioner has been discharging her duties as the hereditary trustee of the temple, according to her, a show cause notice was issued by the Joint Commissioner, HR & CE, Salem to the petitioner pointing out certain alleged irregularities on her part and calling upon her to explain as to why an Executive Officer should not be appointed under Section 45(1) of the HR&CE Act. The petitioner has challenged the same by way a writ petition in W.P.No.22557 of 2007 and according to her, the same is now pending for disposal. 5.In the mean while, the first respondent namely, the Commissioner, HR&CE, Chennai has appointed an Executive Officer under Section 45(1) of the HR&CE Act, by his proceedings in Se.Mu.Na.Ka.No.30802/1999 dated 25.01.2008. According to the petitioner, the irregularities alleged against her are absolutely baseless. In the affidavit, the petitioner has narrated as to how she was very sincere to her work and that the alleged irregularities are false. In this writ petition, the petitioner challenges the above order of the first respondent dated 25.01.2008. 6.The learned counsel for the petitioner would reiterate the grounds as stated in the affidavit of the petitioner. He would submit that the petitioner has no alternative remedy except filing the writ petition. He would further submit that though the impugned order states that the same is revisable under Section 114 of the HR&CE Act, since there is an embargo under Section 114(3) of the Act, the said remedy is not available to the petitioner and so, the writ petition cannot be opposed on the ground that the petitioner has got alternative remedy. 7.Per contra, the learned counsel for the respondents would submit that the alleged irregularities made against the petitioner https://hcservices.ecourts.gov.in/hcservices/ are true and they are founded on well considered materials. Order under challenge is both factually and legally correct and it cannot be assailed, it is contended. He would further contend that since, the order under challenge has been passed by the first respondent, Section 114(3) of the Act, has no application to the facts of the present case and thus, the remedy of revision under Section 114(1) of the Act is very much available to the petitioner and so, the writ petition is not maintainable. 8.I have considered the rival submissions. 9.As rightly pointed out by the learned counsel for the petitioner, if any revision is to be filed to the Government under Section 114(1) of the Act, the party aggrieved should first make an application under Section 21 of the Act to the Commissioner HR&CE and if only such application has been disposed of and the party aggrieved will be entitled to make a revision to the Government under Section 114(1) of the Act. But, the question in this case is as to whether Section 114(3) is a bar for the petitioner to prefer a revision under Section 114(1) of the act. What is contended by the learned counsel for the respondents is that, since, the order under challenge has been passed by the Commissioner himself, there is no question of invoking Section 21 of the Act. When there is no such occasion to invoke Section 21 of the Act, the party is at liberty to make a revision directly to the Government under Section 114(1) of the Act. 10.The learned counsel for the respondents would rely on two judgments of two Division Benches of this Court. In W.A.No.590 of 2007 dated 05.06.2007 the Division Bench after extensively dealing with Sections 114 and 21 of the HR&CE Act, has held as follows:- "5.A combined reading of the said provision, viz., Section 114 of the Act shows that, it is not, as if, in cases where the Commissioner himself passes an order, once again the matter has to be referred to him under Section 21 of the Act. Section 114(3) of the Act would be made applicable only in cases where any other officer other than the Commissioner passes order. In the present case, the impugned order itself has been passed by the Commissioner, and therefore, there is no substance in the contention raised by the learned counsel for the appellant that application has to be moved before the Commissioner under Section 21 of the Act, and thereafter, file appeal to the Government under Section 114." 11.In W.A.No.145 of 1997 dated 01.11.2004, the Division Bench has held: "it is not in dispute that the appellants have effective https://hcservices.ecourts.gov.in/hcservices/ remedy by way of revision to the Government questioning the order of the Commissioner dated 31.07.1987. When such effective remedy is available, we are of the view that it is desirable to allow the said authority to consider and decide the issue on merits instead of going into the same by this Court." 12.A close analysis of the principles evolved in the above two judgments would make it crystal clear that in the case on hand, since the impugned order has been passed by the Commissioner himself, there is no question of invoking Section 21 of the Act and then, to apply Section 114(1) of the Act. The petitioner can very well approach the Government under Section 114(1) of the Act challenging the impugned order which in my considered opinion, is not only alternative but very efficacious also. 13.The learned counsel for the petitioner would submit that before the Division Benches, it was not argued that the power under Section 114(1) of the Act is a suo motu power given to the Government and it cannot be construed to be a right on the part of the aggrieved party to prefer a revision. Therefore, according to the learned counsel for the petitioner, the judgments cited supra of the Division Benches cannot be construed as precedence for deciding the issues involved in the present case. But, I find it very difficult to agree with the said argument of the learned counsel for the petitioner for the simple reason that though apparently, it may look as if the power of the Government under Section 114(1) is a suo motu power and it does not entitle any aggrieved party to approach the Government under the said provision for relief, but, the Division Benches in the above two cases have elaborately dealt with the power of the Government under Section 114(1) Act and have held that the aggrieved party has got a right to approach the Government under Section 114(1) of the Act. The said provision has been so interpreted by the Division Benches to say that the aggrieved party has got the right to prefer a revision to the Government under Section 114(1) of the Act. Therefore, it cannot be said that the scope of Section 114 (1) was not argued before the Division Benches. In my considered opinion, the judgments of the Division Benches as extracted above bind me as the law laid down in the above two judgments squarely applies to the present case. There is no controversy among the learned counsel that in the event of there being an alternative efficacious remedy for the petitioner, the scope of judicial review of this Court under Article 226 of the Constitution of India cannot be so liberally exercised to review such orders which could be assailed either on appeal or on revision. 14.In that view of the matter, since the petitioner has got efficacious alternative remedy, this writ petition has to necessary fail. In the result, the writ petition is dismissed however, liberty is given to the petitioner to prefer revision to the Government under Section 114(1) of the Act. No costs. Consequently, connected https://hcservices.ecourts.gov.in/hcservices/ miscellaneous petition is closed. 15.After the order was delivered, the learned counsel for the petitioner would submit that while calculating the period of limitation for preferring revision, the time spent on this writ petition may be excluded. Considering the same, in the event of preferring revision to the Government, the time spent in this writ petition i.e., from 08.02.2008 to 11.08.2008, shall be excluded. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar jbm To 1 THE COMMISSIONR HINDU RELIGIOUS & CHARITABLE ENDOWMENT (ADMN) DEPT. CHENNAI NUNGAMBAKKAM HIGH ROAD CHENNAI-34 2 THE JOINT COMMISSIONER HINDU RELIGIOUS & CHARITABLE ENDOWMENT (ADMN) DEPT. SALEM 3 THE ASSISTANT COMMISSIONER/ EXECUTIVE OFFICER A/M SUGAVANESWARAR TEMPLE SALEM. 1 CC To Mr.W.C.Thiruvengadam, Advocate, SR NO.43965 1 CC to the Government Pleader, SR NO.44164 W.P.No.3719 of 2008 ksk(co) pmk/14.8.2008. https://hcservices.ecourts.gov.in/hcservices/