G. Srinivasan vs The Deputy Commissioner, H.R. and C.E. Admn. Department. Coimbatore and Inspector, H.R. and C.E. Admn. Department, Sathyamangalam, Periyar District.

K.A. Swami, C.J.—In this petition under Art. 226 of the Constitution of India, the petitioner has sought for quashing the order dated 5.7.1996 passed by the Deputy Commissioner, H.R & C.E. (Admn) Department. Coimbatore, in Na. Ka. No.7221/96/A3. appointing the Inspector, H.R & C.E. Admn Department. Sathyamangalam to take over the affairs of the temple, known as "Sri Kunnikaparameswari Temple".

The undisputed facts of the case are as follows:- The temple in question is governed by the Scheme framed by the Deputy Commissioner for Hindu Religious and Charitable Endowments (Administration) Department, Coimbatore. on 10.4.1978 in O.A. No. 89/77-B1, under Sec. 64(1) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (hereinafter referred to as ''the Act). The provisions of the Scheme are as follows:

This scheme shall come into force from the date of publication in the District Gazette of Coimbatore.

The temple of Sri Kannikaparameswan. Salhyamangalam Town, Coimbatore District and all the properties movable and immoveables which or long to or have been or hereafter be given dedicated or endowed thereto and acquired for the temple in general or any one or more of the deities in particular do and shall vest in the respective deities.

The temple of Sri Kannikaparameswari. Sathyamangalam Town, Coimbatore District shall he administered by 5 non-hereditary trustees to be appointed as per clause 4 of the Scheme by the appropriate authority under the MR & C.E. Act.

5 persons shall be appointed as trustees by the appropriate authority from the Arya Vysya Community residing in Salhyamangalam Town, Coimbatore District, provided they do not suffer from any disqualifications mentioned in the HR & CE Act.

Pending the appointment of trustees under clause 4, Thiru S.M. Ramanathan is appointed as Fit Person.

Save in so far as expressly provided for herein the provisions of the Tamil Nadu Act 22 of 1959'' and the Rules framed hereunder, as may be amended from time to time, shall apply to the management and administration of the temple.

According to the recitals contained in the impugned order, the period of five non-hereditary trustees was over on 19.4.1996. However, it is the case of the petitioner that the period was over only on 18.4.996. Whatever it may be. as the matter stands today, the period of the aforesaid five persons, named in the impugned order, as lusters has been over. The impugned order only directs the Inspector of H.R. & C.E. Department, to take over the administration of the limply. Once the period is over, the trustees will not have any right to continue to manage and administer the temple. it has to be administered by the H.R. & CE. Department, according to the provisions of the Act.

In the meanwhile, the Governor of Tamil Nadu has issued Tamil Nadu Ordinance No 3 of 1996, which has come int force on 26th June 1996 Sub-sec.(2) of Sec. 2 of the Ordnance leads thus -

(2) On and from the date of commencement this'' finances, the functions of the board of trustees of the trustee, as the case may be, of any religions tuition shall, until the vacancy is filled up in accordant with the provisions of the 1959 Act. be performed - (a) by the hereditary trustee or trustees of such in situation, and

(b) If There is no hereditary trustee of such constitution, by the executive officer or if the Government direct by a fit person, who shall be an office of the Hindu Religious and Charitable Endowments Administation Department, not below the rank of Inspector appointed by the Commissioner or by any officer below the rank of Assistant Commissioner, authored by the Commissioner in this behalf Thus, as per the Scheme extracted above the institution in question is not having any heredities trustee. All the five trustees are non-hereditary trustees. Their term was over on 19.4.1996 Therefore, as per sub-sec. (2) of Sec. 2 of the Tamil Nadu Ordinance 3 of 1996, it is open to the Deputy Commissioner to appoint an officer not being the rank of Inspector of the Department to take over the administration of the temple As such the impugned order cannot be held to be the passed without the authority of law. Unless the triplets representing the community are appointed as per the provisions of the Scheme the petitioner herein, though he may belong to Arya Vysya community of Sathyamangalam Town cannot be considered to be the Arya Vysya Community of Salhyamangalam Town. We may also point out here that out of the five trustees whose term had expired, only One of them, who was the Chairman of the Board of Trustees, has filed the writ petition and ''wants to continue lo admin the temple even after the expiry of the period.

In Muthiah Asari v. Madasami Asari (1965 (II) M.L.J. 220 = 781.W.385), a similar question arose and the Division Bench observed thus We think it is sufficient to point out the position at law, for the facts of the present case make it above dandy clear that there is no need, in the immediate could text to strike down any provision of law in the 1959 Act us ultra virus in view of rights guaranteed under Article 36 of the Constitution. Certainly, the fact that the Area Committee purported In nominate members of the particular religious denominations will not be enough to cure the vice or infirmity, if otherwise the rights guaranteed to this body under Article 26 (d) are effectively taken away by the nomination. But the matter seems to be academic at the moment, since the terms of the members who were previously functioning us trustees, we shall assume as tie facto trustees, have come to an end The temple, we must reiterate, belongs to the entire body of the Vrswa Karma Brahmin community of the district, and not merely to members of the five named villages or cerium villages. The interim powers of the Commissioner or the Area Committee to make arrangements for the day-to-day administration of the temple and its endowments are not in dispute, Hence, we direct that such arrangements be made, as appear feasible and expedient. In the meantime, it is obvious that an electoral roll has to be prepared, of the members of this community in the district, which forma corporate body in whom vested relevant rights under Article 26 of the Constitution. If such a roll is prepared, some kind of an electoral meeting has to be convened, or an electoral college has to he loaned and two or three trustees, as convenient, will have to be elected by the electorate. Certainly, the Area Committee and the Commissioner will nave discretion to decline to accept the elected candidates who suffer from any specific unsuitably or infirmity unfitting them from office; in that case, election may have to be held again in that particular respect. But subject to this restriction, it is the corporate body that has to elect trustees for the administration and management of the temple and its properties. Such arrangement may be carried out by the authorities under the directions of the Commissioner (first defendant) after the proper interval of lime; in the meantime, the interim arrangements will continue to be enforced.

It is submitted that the Inspector docs not belong to Arya Vysya Community of Sathyamangalam Town and, therefore, he cannot be appointed to administer the temple, since the temple belongs to Arya Vysya Community of Sathyamangalam town. A similar question arose in Writ Appeal

No. 523 of 1988 (V.B.S Mani v. The Commissioner, H.R. & C.E. Department) decided on 28.3.1988. The same learned counsel advanced a similar argument in that case. The Division Bench has held thus:

According to Mr. Thinrvengadam, even for appointment of official fit person, the person must belong to Senguntha Mudaliar Community. The learned Judge has rejected that contention We agree with the view taken by the learned Judge. Though there is a clause, namely Clause (4) in the Draft Scheme, contemplating the appointment of non-hereditary trustees from Senguntha Mudaliar Community, the present appointment of the second respondent as a fit person for a period cannot be; said to be against Clause (4) As pointed out by the learned Judge, Section 51 of the Hindu Religions and Charitable Endowments Act enables the authorities to appoint a lit person from other communities as well, if the circumstances warrant

It is also contended that the Inspector of H.R. & C.E. is not appointed as a ''fit person"". A rending of the entire order makes it clear that the purpose for which a ''fit person"" is to be appointed is to look after and administer the religious institution. The order empowers the Inspector to do that The mere fact that the expression fit person'' is not used, does not vitiate the order. Inspector is appointed to perform the function of a "fit person" only.

It is contended that the impugned order does not refer to the Ordinance in question, there-fore it cannot be held to have been issued in exercise of the power under sub-section (2) of Section 2 of the Tamil Nadu Ordinance 3 of 1996. The mere fact that there is no mention in the impugned order, about the Ordinance in question, does not vitiate the order. As long as the authority under which the impugned order is passed is traceable to the provisions contained in sub- section (2) of Section 2 of Ordinance 3 of 1996 it is sufficient, and as such it is not possible to hold that the impugned order is vitiated because there is no reference to sub-section (2) of Section 2 of Ordinance 3 of 1996. In view of the aforesaid discussion, the writ petition is dismissed. Consequently, late interim order comes to an end. No costs. However, we direct the respondents to appoint non-hereditary trustees. as per the scheme, within three months. The petitioner and other trustees shall not be prosecuted if they hand over the management of the temple on or before 2.9.1996. if they fail to hand over the management of the temple on or before 2.9.1996. the respondents shall initiate prosecution against them.