Solingar temple case r sureskumar judge full order govt ag and sgp chandrasekar

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 03.12.2021
CORAM :
THE HONOURABLE MR.JUSTICE R.SURESH KUMAR
Writ Petition No.25891 of 2021
K.K.C.Yogesh …. Petitioner
-Vs-
1. The Joint Commissioner
Tamil Nadu Hindu Religious and Charitable Endowments Department, 1st Floor, RTO Salai Sathuvachari, Vellore – 632 009.
2. The Assistant Commissioner
Tamil Nadu Hindu Religious and Charitable
Endowments Department, No.308, 2nd Floor Arcot Salai, Kakithapattarai, Vellore – 632 102.
3. The Executive Officer
Arulmighu Sri Lakshmi Narasimha Swamy
Devasthanam, Sholinghur – 631 102 Ranipet District.
4.The Inspector
Tamil Nadu Hindu Religious and Charitable
Endowments Department, Arakkonam. …. Respondents
Prayer : Writ Petition under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorari calling for the records pertaining to the 1st respondent to the notification published on 17.11.2021 in Dinakaran Tamil Daily Newspaper calling for applications for appointment of non-hereditary trustees to the Arulmighu Sri Lakshmi Narasimha Swamy Temple situated in Sholinghur, Ranipet District and quash the same as illegal, ultravires and void.
For Petitioner : Mr.D.Rajagopal
For Respondents : Mr.R.Shanmugasundaram, Advocate General
Assisted by Mr.T.Chandrasekaran
Special Government Pleader – for RR 1,2 & 4
Mr.A.K.Sriram, Standing Counsel – for R3
O R D E R
The prayer sought for herein is for Writ of Certiorari calling for the records pertaining to the 1st respondent to the notification published on 17.11.2021 in Dinakaran Tamil Daily Newspaper calling for applications for appointment of nonhereditary trustees to the Arulmighu Sri Lakshmi Narasimha Swamy Temple situated in Sholinghur, Ranipet District and quash the same as illegal, ultravires and void.
2. It is the case of the petitioner that the temple called Arulmighu Sri Lakshmi
Narasimha Swamy Temple dedicated to Lord Narasimhar situated at Sholinghur, Ranipet District is one among the 108 vaishnavite divyadesams and governed by the provisions of the Scheme framed in O.A.No.411 of 1942 dated 05.08.1944 on the file of the Board of the Commissioner for H.R.&C.E., Department.
3. It is the further case of the petitioner that, the grandfather of the petitioner one K.K.C.Periyappangar Swamy was serving the temple as ‘first theerthakar’ and one key holder of the double lock system and discharging the duties of custodian of jewels and other valuables of the said temple. After the demise of the petitioner’s grandfather, his father one K.K.C.Singarachariar Swamy was discharging such duties and receiving the honours attached to the said service. After the death of his father, now the petitioner, claiming that he is discharging the duties as ‘first theerthakar’ and operating the double lock system and is the first key holder in respect of the jewels and other valuables belonging to the temple.
4. When that being so, now the issue that has come up for consideration is that, the first respondent has issued a notification in Tamil Daily Dinakaran dated 17.11.2021, under which applications are invited from the eligible persons for consideration to be appointed as non-hereditary trustees of the said temple and the last date for receipt of applications according to the said notification is 03.12.2021.
5. In this regard, it is the grievance of the petitioner that, before appointing the non-hereditary trustees, as per the earlier order passed by a Division Bench of This Court, where the petitioner’s grandfather was a party, that a direction was given by the Division Bench that, before making any appointment with regard to the nonhereditary trustees of the temple, though the grandfather of the petitioner was not a hereditary trustee of the temple, still he was to be put on notice under Section 47(2) of the H.R.&C.E., Act, 1959 (In short ‘the Act’).
6. According to the petitioner, the said order passed by the Division Bench of this Court still holds good and therefore this time also when this notification was issued for selection and appointment of non-hereditary trustees, notice should have been given to the petitioner since he claims to have been recognized as the ‘first theerthakar’ of the temple after the demise of his father. Since such notice, according to the petitioner, has not been given to him, he wanted to challenge the impugned notification published in Dinakaran Daily on 17.11.2021 and that is how the present writ petition has come up before this Court.
7. Heard Mr.D.Rajagopal, learned counsel for the petitioner, who relied upon various orders passed by this Court at various point of time, as there had been number of litigations filed before this Court either by the grandfather of the petitioner or father of the petitioner and all those times, orders have been passed.
8. Among the various orders passed by this Court at various point of time, the learned counsel for the petitioner has heavily relied upon the Division Bench order made in W.A.No.981 of 1992 dated 17.12.1992 in the matter of “State of Tamil Nadu represented by Secretary to the Government, CT & RE Department,
Chennai -Vs- K.K.C.Periyappangar Swamy”. The relevant portion of the Division
Bench order, which is heavily relied upon by the petitioner reads thus,
“ It is at once obvious that the respondent has some interest in the institution and that may be either as a Non-hereditary trustee or even as a ‘theerthakar’ or a Manager or in some other capacity which, on the state of the record as it is, does not appear to be very clear. Before the appointment of Non-hereditary trustees, a person like the respondent, who professes the duties as a Non-hereditary trustee, is put on notice of any proposal to associate other persons in their capacity as Non-hereditary trustee and the clarification sought for by the appellants was rightly refused by the learned Judge. The writ appeal is dismissed. No costs.”
9. The learned counsel appearing for the petitioner also would contend that, second time also when similar issue came up, writ petition was filed by the grandfather of the petitioner, subsequently by the father of the petitioner in W.P.No.6765 of 2002, where a learned single Judge of this Court has passed the following order on 30.11.2010.
“ 8. Considering the submissions of the learned counsel appearing for the petitioner and after considering the orders passed by this Court on the earlier occasions, this Court is of the opinion that, it is a fit case where the petitioner will have to be directed to give his objections. Accordingly, the petitioner is directed to give objections, within a period of six weeks, from the date of receipt of a copy of this order to the second respondent. Thereafter, the second respondent is directed to pass appropriate orders on the objections of the petitioner, within a period of eight weeks from the date of receipt of the objections. Thereafter, based upon the decisions to be made, the second respondent is at liberty to proceed further in accordance with law. It is made clear that if the petitioner has not given any objections, within a period of six weeks granted by this Court, it is open to the second respondent to proceed further in accordance with law.”
10. Also, the learned counsel for the petitioner has relied upon Clause 16 of the
Scheme framed in the year 1942 in O.A.No.411 of 1942, which reads thus,
“16. The Executive Officer is the person who is prima is responsible for taking proper care of the buildings, jewels and vessels etc., belonging to the temple. In respect of the jewels now in custody of the 1st theerthakar the system of double lock should be introduced and the 1st theerthakar and the Executive Officer shall each have a key.”
11. Relying upon the said clause of the Scheme as well as the judgment of the Division Bench and the learned Single Judge of this Court, the learned counsel for the petitioner would contend that, the said position as ‘first theerthakar’ and to hold the first key or one key of the double lock system where jewels and valuables belonging to the temple, is protected and maintained by his late grandfather and father of the petitioner and by the petitioner even now. He further submits that, the import of these orders as well as the Scheme referred to above still holds good and therefore, the petitioner, even though is not a hereditary trustee, still he is entitled to get a notice from the respondent temple as well as the H.R.&C.E., Department before making any attempt to appoint non-hereditary trustees as has been stated in the impugned notification. Since such a notice has not been given and the petitioner has not been put on notice before issuing such notification, the petitioner would contend that, the action on the part of the respondents in issuing the impugned notification without giving notice to the petitioner amounts to violation of the import of the said orders referred to above as well as part of the Scheme. Therefore, the learned counsel for the petitioner seeks the indulgence of this Court against the impugned notification.
12. Heard Mr.R.Shanmugasundaram, learned Advocate General appearing on behalf of the respondents 1 and 2, who, on instructions would submit that, insofar as the role of the petitioner is concerned, he is neither a hereditary trustee nor is a recognized person to participate in any part of the administration of the temple concerned. He would also submit that, if at all in the case filed by the petitioner’s grandfather, which was ultimately decided by the Division Bench of this Court in the year 1992, where a direction was given that his grandfather should have been put on notice before taking a decision with regard to the appointment of non-hereditary trustees, that decision has been made only on the basis of the service rendered by the grandfather of the petitioner towards the temple and this has become clear from the language used by the Division Bench, where they have clearly stated that, his role may be either as a Non-hereditary trustee or even as a ‘theerthakar’ or a Manager or in some other capacity which, on the state of the record as it is, does not appear to be very clear, makes it clear that, his role is nothing but a part of the custody of the jewels which have been kept in locker, where he continues to hold one key, as the other key is held by the Executive Officer of the temple.
13. Merely because he is holding the key of the double lock system, where the valuables of the temple is kept, he cannot seek any indulgence of this Court that, he should be treated as part of the administration and in that capacity, he should have been given an opportunity of being heard or his say might have been taken into account by the H.R.&C.E., Department before proceeding to appoint non-hereditary trustees, for which the present attempt has been made by issuance of the impugned notice.
14. Therefore, the learned Advocate General would submit that, the ground raised by the petitioner that, he should have been heard before issuance of the impugned notice is totally untenable and it is beyond the scope of the provisions of the H.R.&C.E., Act especially in the context of the appointment of non-hereditary trustees and therefore the plea raised by the petitioner can outrightly be rejected by this Court.
15. On the other hand, Mr.A.K.Sriram, learned Standing Counsel appearing for the third respondent, on instructions would submit that, no doubt the petitioner as of now, after his grandfather as well as his father, is holding one key of the double lock system. However, by virtue of holding such key of the double lock system, he cannot claim any right as ‘first theerthakar’, as such a recognition has not so far been given either by the H.R.&C.E., Department or by the third respondent temple in favour of the petitioner.
16. He would also submit that, he has been doing some service to the temple and even prior to him, where services rendered by his grandfather and his father were not merely service, because some Sanmaanam or payment has been made by the temple to the grandfather and the father of the petitioner.
17. Insofar as the Scheme framed in this regard, especially in the context of Clause 16 of the Scheme is concerned, that was applicable only in respect of the grandfather of the petitioner. After the demise of the petitioner’s grandfather, even the Clause 16 of the Scheme cannot be made applicable to the father of the petitioner as well as to the petitioner because, neither the petitioner nor his father inherited the ‘first theerthakar’ status of the temple from the grandfather of the petitioner.
18. Therefore, the learned Standing Counsel for the third respondent temple would also contend that, absolutely there can be no reason for the petitioner to seek for any indulgence from this Court that, he should have been given an opportunity by putting him on notice before issuing the impugned notice. Therefore, such a plea raised by the petitioner is to be rejected, he contended.
19. I have considered the submissions made by the learned counsel appearing for both sides and have perused the materials placed on record.
20. Though the controversy appears to have been with a larger or checkered history, in the considered opinion of this Court, the same is in a very narrow compass. The reason being that, under the provisions of the Act, where power is vested with the H.R.&C.E., Department, the first respondent issued the impugned notification inviting applications from eligible persons to be considered for selection and appointment as non-hereditary trustees of the third respondent temple. That kind of power has not been questioned by the petitioner. It cannot even be questioned.
21. However, the only grievance of the petitioner is that, as the role of the grandfather of the petitioner as well as the father of the petitioner has been recognized, he should also be recognized at the time of making any appointment as non-hereditary trustees of the temple by putting him on notice and to elucidate the views expressed by the petitioner.
22. In respect of this plea raised by the petitioner, it has been argued by the learned counsel for the petitioner that, under Clause 16 of the Scheme, since it has been stated that the double lock system will be introduced and the ‘first theerthakar’ and the Executive Officer each will have the key.
23. The meaning being that, according to the learned counsel for the petitioner, that role of the ‘first theerthakar’ will be perennial one and it can be inherited hereditarily by the legal heir of the grandfather of the petitioner. Therefore, according to the learned counsel for the petitioner, first the grandfather of the petitioner, then the father of the petitioner, and thereafter the petitioner inherited that merit of holding the title of ‘first theerthakar’ and since he has been considered to be the ‘first theerthakar’, he can continue to hold one key of the double lock system.
24. Only in that capacity as ‘first theerthakar’, since the gesture was shown by the Division Bench order passed in the year 1992 to give a notice to the grandfather of the petitioner, even though he was not directly entitled to get a notice under Section 47(2) of the Act, the same logic would apply to the petitioner also.
25. Moreover, the holding of a key of double lock system can never be a permanent phenomena as has been directed under the Scheme. However, this Court feels that, so long as Clause 16 of the Scheme is still there and it is being practiced till date, unless and until there is a modification done in the Scheme by referring the same before the Joint Commissioner or Commissioner, the double lock system shall continue in the third respondent temple.
26. However, once that double lock system, if it is continued, whether the first key or the second key should be handed over to the petitioner claiming to be the ‘first theerthakar’ is a question to be decided. Therefore, in this regard this Court feels that, better this matter, insofar as the right of the petitioner to hold the first key of the double lock system is concerned, can best be decided by referring the matter to the Commissioner or Joint Commissioner. Therefore, a direction can also be issued in this regard.
27. On the present issue as to whether the petitioner would have any say before the decision to be taken by the respondent HR & CE Department in respect of the selection and appointment of non-hereditary trustees are concerned, even on the earlier occasions when writ petitions were filed, this Court has taken a consistent stand that, though the grandfather or the father of the petitioner are not considered to be hereditary trustees under Section 47(2) of the Act, still notice can be given to the grandfather of the petitioner and when the petitioner’s father’s time has come, it has been further diluted by the order of the learned Single Judge dated 30.11.2010, where it was permitted to the petitioner’s father to give objections as to whether he has got any specific reasons or objections with regard to the selections to be made for non-hereditary trustees.
28. This Court, at this juncture, feels that, the petitioner cannot have a better footing than what was enjoyed by the petitioner’s father in this aspect.
29. Therefore, if at all the petitioner has got any little right to have a say on the selections to be made for the post of non-hereditary trustees, in this regard only from the point of view of the security of the custody of the jewels and valuables for which he has one key of the double lock system, he may have a limited say, for which the petitioner can be permitted to have his objections submitted to the H.R.&C.E., Department, which the Department may consider and take into account before finalizing the list of non-hereditary trustees to be appointed pursuant to the impugned notification.
30. In view of the above discussions, this Court is inclined to dispose of this writ petition with the following order.
(a)That the challenge made against the impugned order, for the aforesaid reasons, cannot be sustained. Therefore, in this regard, the writ petition fails and it is rejected.
(b)However, it is open to the petitioner to make his objections, if any, with regard to the manner in which the selection is made or against the persons to be selected and appointed as non-hereditary trustees pursuant to the impugned notification and in this regard, such objections shall be filed by the petitioner if he desires to do so, to the Joint Commissioner / first respondent, who, on receipt of such objections, consider it objectively and accordingly a decision can be taken in accordance with the provisions of the H.R.&C.E., Act.
(c) Insofar as the continuous maintenance of one key of the double lock system is concerned, since it is part of the Scheme of the year 1942 under Clause 16, it is better to refer the matter to the Commissioner or Joint Commissioner as the case may be, to have a modification of the Scheme especially Clause 16 and in this regard, suitable modification can be made by giving an opportunity of being heard to the petitioner. Such exercise can also be undertaken by the HR & CE Department at the earliest.
(d)Once such a modification is made and the double lock system is done away with in future, automatically the lock system will become a single lock and key system and in that case, the key can be held by either the Executive Officer or any other person to be nominated in this regard by the HR & CE Department. In that case, the present controversy would not arise in future while appointing further non-hereditary trustees in the next term.
31. With the above directions and observations, this writ petition is disposed of. No costs.
03.12.2021
Index : Yes/No
Internet : Yes/No
KST
To
1. The Joint Commissioner
Tamil Nadu Hindu Religious and Charitable Endowments Department, 1st Floor, RTO Salai Sathuvachari, Vellore – 632 009.
2. The Assistant Commissioner
Tamil Nadu Hindu Religious and Charitable
Endowments Department, No.308, 2nd Floor Arcot Salai, Kakithapattarai, Vellore – 632 102.
3. The Executive Officer
Arulmighu Sri Lakshmi Narasimha Swamy
Devasthanam, Sholinghur – 631 102 Ranipet District.
4.The Inspector
Tamil Nadu Hindu Religious and Charitable Endowments Department, Arakkonam. 
R. SURESH KUMAR, J.
kst
W.P.No.25891 of 2021
03.12.2021