B. Namasivaya Barathi v. The Assistant Commissioner

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED :17.12.2021

CORAM

THE HON'BLE MR. JUSTICE M.SUNDAR W.P(MD) No.14220 of 2015 and M.P.(MD)Nos.2 and 3 of 2015 B.Namasivaya Barathi ... Petitioner Vs.

1.The Assistant Commissioner, HR&CE Department, Paramakudi, Ramanathapuram District.

2.The Executive Officer, Arulmigu Vettudaiyaar Kaliamman Temple, Kollangudi, Sivagangai District.

... Respondents PRAYER: Petition filed under Article 226 of the Constitution of India, for the issuance of a Writ of Certiorarified Mandamus, calling for the records of proceedings of the 1st respondent dated 24.04.2015 in the proceedings of reference Na.Ka.No.893/2006/A7, quash the same and pass consequetial order directing the respondents department not to interfere with the management and administration of the temple known as Arulmigu Kumarakadavul @ Subramaniya Swamy Temple, and Karupapillai Samadhu Madam at Valanadu, Mudukulathur Taluk, Ramanathapuram District.

For Petitioner : Mr.N.Ananthapadmanaban For Respondents : Mr.C.Satheesh, Government Advocate for R1 Dr.C.Guhaseelarupan for R2

O R D E R

This common order will dispose of captioned main writ petition and the two miscellaneous petitions therein.

2. In the hearing today, Mr.N.Ananthapadmanaban, learned counsel for writ petitioner, Mr.C.Satheesh, learned Government Advocate on behalf of first respondent and Dr.C.Guhaseelarupan, learned private counsel for the Executive officer of Arulmigu Vettudaiyaar Kaliamman Temple, who has been appointed as Fit person of 'Subramaniya Swamy Temple known as Kumarakadavul situate in Valanadu, Mudukulathur Taluk, Ramanathapuram District' (hereinafter 'said temple' for the sake of convenience and clarity) are before me.

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3. The captioned matter turns on a short point and therefore factual matrix in a nutshell which is imperative for appreciating this order will suffice. Short facts are that a scheme in O.A.No.22 of 1962 framed vide orders of the jurisdictional then Deputy Commissioner vide order dated 24.09.1964 under Section 64(1)of 'The Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (Tamil Nadu Act No.22 of 1959)' [hereinafter 'TN HR&CE Act' for the sake of brevity, convenience and clarity] is operating qua said temple; that vide this scheme three hereditary trustees, two nonhereditary trustees (5 in all) are to administer said temple; that the first respondent in and by an 'order dated 24.04.2015 bearing reference e.f.vz;.

893/2006/m7' (hereinafter 'impugned order' for the sake of convenience and clarity) appointed a Fit person for said temple; that the Fit person appointed for said temple is Executive Officer of Arulmigu Vettudaiyaar Kaliamman Temple as already alluded to supra (while recording the presence of the counsel); that assailing the impugned order, the captioned writ petition was filed more than one year and half a decade ago in this Court; that to be precise, captioned writ petition was filed on 05.08.2015; that the captioned writ petition has now been pending for six years now.

4. Notwithstanding very many averments in the writ affidavit and very many grounds raised in the writ affidavit, learned counsel for writ petitioner predicates his campaign against the impugned order on two points and those are (a) impugned order is bad as said temple is a private temple. In support of the contention, learned counsel for writ petitioner submits that a suit in O.S.No.34 of 2018 has been filed on the file of Sub Court, Mudukulathur for a declaration that said temple is a private temple and it belongs to writ petitioner and (b) the reasons articulated in the impugned order for appointment of Fit person are bad but I refrain myself from expressing any opinion or view on the same as I intend leaving open the rights of the writ petitioner to make a campaign against the impugned order by way of a statutory revision either under Section 21-A (5) or under Section 21 of TN HR&CE Act.

5. Responding to the above submission, learned State Counsel for first respondent submitted that the impugned order has been made in exercise of powers under Section 49(1) of TN HR&CE Act, such exercise of power in the interest of said temple and it cannot be found fault with.

6. Learned private counsel for the second respondent submitted that two First Information Reports (FIRs) are pending against the writ petitioner pertaining to handling of properties of said temple (trees) and he has entailed disqualification inter-alia under clauses (g) and (h) of sub-section (1) of Section 26 of TN HR&CE Act. I refrain myself from expressing any view or opinion on this submission in this order for the self same reason which has been alluded to supra.

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7. The more significant submission made by learned counsel for second respondent is that the aforementioned suit referred to by learned counsel for writ petitioner being O.S.No.34 of 2018 has been dismissed for default on 08.10.2021 and a copy of the dismissal decree has been placed before me and the same is as follows: 3/6

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8. By way of reply, learned counsel for writ petitioner made two submissions and they are

1) there are quash petitions filed to quash the FIRs and the same are coming up for hearing before another Hon'ble Single Judge shortly i.e., in the first week of January 2022 and

2) Second submission is writ petitioner has filed an application for restoration of the suit which was dismissed for default.

9. It is well open to the writ petitioner to pursue the quash petitions and the restoration of suit uninfluenced by any observations that have been made in this order. Likewise it is open to the writ petitioner to take recourse to a legal drill of revision under Section 21-A(5) or 21 of TN HR&CE Act (alluded to supra) subject to limitation and an application under Section 14 of the Limitation Act if that be so. All questions in this regard are left open.

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10. In the light of the narrative thus far, I deem it appropriate to not to interfere in the impugned order in writ jurisdiction.

11. Ergo, captioned writ petition and connected WMPs are disposed of as closed preserving the rights of the writ petitioner to the limited extent indicated above.

Sd/- Assistant Registrar (T&P) // True Copy // / /2022 Sub Assistant Registrar(CS) To 1.The Assistant Commissioner, HR&CE Department, Paramakudi, Ramanathapuram District.

2.The Executive Officer, Arulmigu Vettudaiyaar Kaliamman Temple, Kollangudi, Sivagangai District.

+1 CC to M/s.C.GUHASEELARUPAN, Advocate ( SR-39374[F] dated 17/12/2021 ) +1 CC to M/s.SPL GP ( SR-39501[F] dated 20/12/2021 ) W.P(MD) No.14220 of 2015 17.12.2021 PS(CO) KB(07.01.2022) 6P 5C 6/6