M.P.Nos.1 to 5 of 2009and 2 to 5 of 2009 S.R.M.Ramamurthi Poosari v. The Secretary to Government, Hindu Religious and CharitableEndowment Department, Fort St. George

Writ petition No.20146 of 2009 has been filed underArticle 226 of the Constitution of India to issue a writ ofCertiorari to call for the records pertaining to the impugned orderin G.O.Ms.No.292 dated 23.09.2009 on the file of the Secretary toGovernment, Tamil Development, Religious Endowments and Information,Fort St. George, Chennai, the first respondent herein and to quashthe same.For Petitioners:Mr.K.Alagirisamy, S.C., for Mr.R.Sugumaran, in W.P.No.19636 of 2009 Mr.R.Shanmugasundaram, S.C. for Mr.S.D.Ramalingam in W.P.No.20146 of 2009For Respondents: Mr.T.Chandrasekaran, Spl.G.P. (W.P.19636 of 2009): for R.1 to R4 Mr.R.Gandhi, S.C., for Mr.S.Conscious Elango, for R.5 Mrs.Hema Sampath, S.C., for Mrs.Mahathi Chari, for R.7 (W.P.No.20146 of 2009):Mr.T.Chandrasekaran, Spl.G.P. for R.1 to R4 Mr.R.Gandhi, S.C., for Mr.S.Conscious Elango, for R.5 Mrs.Hema Sampath, S.C., for Mrs.Mahathi Chari, for R.7 and R.8COMMON ORDERW.P.No.19636 of 2009 has been filed challenging theimpugned order of the second respondent dated 18.09.2009, an ordercancelling the election conducted on 23.10.2008 for the Trusteeshipof the temple Arulmigu Mariamman and for conducting the electionafresh.2. W.P.No.20146 of 2009 has been filed challenging theimpugned order of the first respondent dated 23.09.2009, appointingthe fifth respondent herein as trustee, as an interim measure tillthe election is conducted for the trusteeship of the temple.3. The averments made in the affidavit in support of thewrit petition in W.P.No.19636 of 2009, in nutshell, are set out hereunder:- https://hcservices.ecourts.gov.in/hcservices/ (a) The petitioner is one of the hereditary trustees /poosaries of Arulmighu Mariammal Thirukkoil, Irukkangudi, SatturTaluk, Virudhungar District. At the instance of respondents 5 and 6,the third respondent initiated suo motu proceedings in O.A.No.4 of2000 for modification of the existing scheme and the same is pending.Since the term of office of the Managing Trustee would expire on27.10.2008, a meeting for election of Managing Trustee was convenedto be held on 13.10.2008 by a notice dated 30.09.2008. Exceptrespondents 5 and 6, all the other eight trustees were supportinghim. Since respondents 5 and 6 felt that they would not be electedas Chairman, they tried to postpone the election on one reason orother. Writ petitions were filed before this Court as well as beforethe Madurai Bench of this Court by the persons set up by respondents5 and 6 with a view to stall the election.(b) They have failed in their attempt before this Court.Further, they have filed a revision petition through oneS.R.Muthuraman Poosari in R.P.No.48 of 2008 challenging the electionnotice dated 30.09.2008 and for an order of staying the election.The second respondent, without giving any notice, passed an exparteorder staying the participation of the petitioner in the election.The third respondent, in his proceedings dated 10.10.2008, directedpostponement of election by ten days. The Inspector of Policethereafter, forced the Managing Trustee to stop the conduct ofelection on the ground of law and order problem. Hence, the electionwas postponed.(c) The second respondent once again passed an exparteorder extending his earlier order and granted stay of thepetitioner's participation in the election. The petitionertherefore, has to file a writ petition in W.P.No.9157 of 2008 toquash the said order. The then Chairman of the Board of Trustee alsofiled a writ petition in W.P.No.9159 of 2008 by impleading all thetrustees praying for an order to go ahead with the election scheduledto be held on 23.10.2008. Thereupon, the Madurai Bench of the MadrasHigh Court directed the election to be conducted in the presence ofthe District Revenue Officer, Virudhunagar. 4. The averments made in the affidavit in support of thewrit petition in W.P.No.20146 of 2009, in nutshell, are set out hereunder:- (a) The petitioners are the Hereditary Trustees ofArulmighu Mariamman Temple at Irrukangudi Village in Sattur Taluk,Virudhunagar District. It is a temple defined under Section 6 (20)of the Tamil Nadu Hindu Religious and Charitable Endowment Act,(herein after referred to as the said Act). The temple is governedby the scheme framed by the Board of Commissioner for Hindu Religiousand Charitable Endowment, (herein after referred to as H.R & C.E.),Madras vide order No.1000 dated 04.05.1935. In and by the scheme, https://hcservices.ecourts.gov.in/hcservices/ the temple and its properties shall be administered and managed onlyby the Board of Hereditary Trustees nominating or electing one amongthem to be the Chairman. They are elected once in three years.(b) The Government passed an order on 29.10.1991appointing an Executive Officer to the temple. Thus, the temple wasclassified under clause (iii) of Section 46 of the said Act.Originally, the temple was founded by one Ramaswamy Poosari, theforefather of the first petitioner and after him, his sons RamasamyPoosari alias Mookan Poosari, Muthuraman Poosari and JothiyanPoosari, were all trustees cum poosaris. Only from these trustees,the family tree expanded. Before the orders were passed inR.P.No.169 of 1975 dated 23.03.1977, all the members in the familyare considered as Hereditary Trustees. Since there were differenceof opinion and disputes among themselves, the said revision petitionwas filed. After hearing all the Hereditary Trustees, it was finallydecided on 23.03.1977 stating that only the first male son willbecome a Hereditary Trustee of the temple.(c) Whenever elections were announced, writ petitions orsuits will be filed to stop the election. The tenure of the Chairmanof the Board of Hereditary Trustees came to an end on 27.10.2008.Hence, the outgoing Chairman issued a Special Meeting Notice dated30.09.2008 to hold the special meeting on 13.10.2008 and to elect aChairman for the period between 28.10.2008 and 27.10.2011. Therewere 11 Hereditary Trustees at that time, who were eligible to takepart in the election. Except, Ramar Poosari and Sethulingam Poosari,eight of the trustees were supporting Ramamurthy Poosari.Respondents 5 and 6 started to initiate vexatious litigations beforethis Court as well as Civil Civil Court to postpone the election sothat the fifth respondent could with the connivance of the H.R. &C.E. Officials be appointed as a Fit person. Under the provisions ofthe said Act, the Department will have power to appoint a Fit Personif no elections are held before the expiry of the term.(d) R.5, the person set up by Sethulingam Poosari and R.6,his associate Ramar Poosari moved the Madurai Bench of this Court toappoint a Fit Person by dismissing the Board of Trustee and to quashthe election notice dated 30.09.2008 and they were dismissed.Thereafter, a revision petition was filed before the secondrespondent in R.P.No.48 of 2008 challenging the election notice dated30.09.2008 and for ordering stay of election. Without giving anynotice, the second respondent passed an exparte order staying theparticipation of the second respondent in the election scheduled tobe held on 13.10.2008, though there was no such prayer. However, thethird respondent, by his proceedings dated 10.10.2008, directedpostponement of the election for ten days.(e) As if it was not enough, at the instigation ofrespondents 5 and 6, the Inspector of Police, Irrukangudi Police https://hcservices.ecourts.gov.in/hcservices/ Station, forced the Managing Trustee to stop the conduct of electionon the ground of law and order problem. Hence, no election could beconducted on 13.10.2008 and it was resolved to postpone the meetingon 23.10.2008. However, the second respondent once again passed anexparte order in R.P.No.48 of 2008 extending his earlier order andgranting stay of the participation of second petitioner in theelection. Hence, two writ petitions were filed before the MaduraiBench of this Court in W.P.No.9157 of 2008 to quash the exparte ordermade in the said revision petition and W.P.No.9159 of 2008 by thethen Chairman of the Board of Trustees, impleading all the Trusteespraying for an order to go ahead with the election scheduled to beheld on 23.10.2008. 5. Except the above averments made in both the writpetitions, the following facts are common in both the writ petitions,which in nutshell are set out here under:-(a) By an order dated 20.10.2008, an order was passed inW.P.No.9157 of 2008 setting aside the stay granted by the departmentand it was further directed that the existing 11 Trustees wereallowed to participate in the election either as candidates orvoters, as the case may be. In W.P.No.9159 of 2008, it was orderedthat the election shall be conducted on 23.10.2008 or on such otherdate within 27.10.2008, as the case may be. Both the writ petitionswere ordered subject to the outcome of the enquiry proceedings, whichare pending before the Commissioner. The District Revenue Officer,Virudhunagar, was directed to be an observer for the said electionsince certain persons raised apprehension about the law and orderproblem in the election. (b) On receipt of the said order, the District RevenueOfficer, Virudhunagar was intimated in time on 21.10.2008 throughwire order and further by the petitioners through a telegram dated21.10.2008 and personally on 22.10.2008 at 10.30 a.m. However, sheissued a letter dated 22.10.2008 at 10.30 p.m. seeking to postponethe election on some other date in spite of the orders of the MaduraiBench of the Madras High Court in those writ petitions. (c) On 23.10.2008 at 10.00 a.m., the special meeting forthe election of the Chairman of Board of Trustees was held. ExceptSethuramalingam Poosari and Ramar Poosri, viz., respondents 5 and 6respectively, all the other Executive Trustees were present to vote(8 out of 10). They have elected the second petitioner inW.P.No.20146 of 2009 as new Chairman to the Board of Trustees. Thedepartment officials nominated by the Commissioner were also presentincluding the fourth respondent, the Executive Officer of ArulmiguMariammal Thirukoil, Irrukkankudi. (d) The fifth respondent has filed O.S.No.7380 of 2008before the learned VIII Assistant Judge, City Civil Court, Chennai, https://hcservices.ecourts.gov.in/hcservices/ who does not have territorial jurisdiction to question the hereditarytrusteeship of Rajendra Poosari, the outgoing Chairman, seekingdeclaration that he was not a hereditary trustee and for aninjunction restraining him from holding the election. Even though anexparte injunction was granted on 22.10.2008, the same wascommunicated to the third respondent only on 24.10.2008, viz.,subsequent to the election. Therefore, C.R.P.PD.No.3634 of 2008 wasfiled to strike off the plaint. (e) Suppressing the pendency of the said revision, thefifth respondent filed a second suit in O.S.No.8178 of 2008 beforethe same Court, seeking declaration that the election dated23.10.2008 was null and void and for an injunction restraining thesecond petitioner from acting as the Chairman and obtained interiminjunction. Hence, C.R.P.No.4051 of 2008 was filed challenging thesaid order and seeking rejection of the plaint. This Court waspleaded to grant interim suspension of the interim order granted on04.12.2008. (f) On 19.01.2009, C.R.P.PD.No.3634 of 2008 was disposed ofdirecting the trial Court to dispose of the suit giving liberty toraise all the legal and factual contentions before the trialCourt. C.R.P.PD.No.4051 of 2008 was also disposed of setting asidethe interim order and also rejecting the prayer to strike off theplaint in O.S.No.8178 of 2008. (g) Thereafter, a clarification application was filed beforethe Madurai Bench of the Madras High Court in M.P.No.1 of 2008 inW.P.No.9157 of 2008. The same was also dismissed holding that anyperson, who is aggrieved by an order made in the writ petition is atliberty to challenge the same in a manner known to law, but, however,holding that the application for clarification does not require anyconsideration. While the facts thus stood, the second respondent hadpassed the impugned order dated 18.09.2009 cancelling the electionalready held. The said order was under challenge in W.P.No.19636 of2009. While so, the first respondent appointed the fifth respondentas a Fit Person / Chairman of the Board of Trustees of the temple bythe impugned order dated 23.09.2009, which is challenged inW.P.No.20146 of 2009.6. Counter affidavit was filed in W.P.No.19636 of 2009 bythe second respondent on his behalf and on behalf of respondents 1and 3, wherein the following facts have been set out:-(a) The temple is under the administrative jurisdiction ofthe Joint Commissioner, Sivagangai. The administration is beinglooked after by the Executive Officer in the cadres of AssistantCommissioner, H.R. & C.E., Department along with Board of HereditaryTrustees. Though the Chairman, Board of Trustees has to be elected https://hcservices.ecourts.gov.in/hcservices/ or nominated under the provisions of the said Act, the Chairman isbeing elected in the recent past under the directions of this Court. (b) There were misunderstanding between the trustees andhence, the petitioner in W.P.No.19636 of 2009 and the firstpetitioner in W.P.No.20146 of 2009 have filed two writ petitions inW.P.Nos.9157 and 9159 of 2008 before the Madurai Bench of the MadrasHigh Court in the matter of election of Chairman, Board of HereditaryTrustees scheduled to be held on 23.10.2008. The Madurai Bench ofthis Court has ordered to conduct the election on 23.10.2008 or onsuch other date within 27.10.2008 as may be decided by the trustees.Further, it was directed that the District Revenue Officer,Virudhunagar shall be the observer for the said election. In spiteof the same, S.A.Rajendran Poosari conducted election on 23.10.2008unilaterally in the absence of the District Revenue Officer,Virudhunagar and sought for approval of the same in his letter dated23.10.2008.(c) In the meantime, the fifth respondent filed a suitbefore the Civil Court Court, Chennai, and obtained interim orders.Challenging those orders, revisions have been filed and they werealso disposed of. In the mean while, the petitioner soughtpermission to operate the Bank Account jointly with the AssistantCommissioner / Executive Officer of the temple in his letter dated28.07.2009. In view of the said fact, the Joint Commissioner,Sivagangai has filed a petition before the Madurai Bench of thisCourt seeking clarification as the election was not conducted on23.10.2008 properly in the presence of District Revenue Officer,Virudhunagar. After hearing the parties, the Madurai Bench of thisCourt has dismissed the application for clarification.(d) Thereupon, the second respondent had passed orders onthe petition filed by S.R.Muthuraman Poosari dated 07.10.2008 and onthe application made by S.A.Rajendran Poosari dated 23.10.2008 and onthe application made by the petitioner in W.P.No.19636 of 2009. Writpetitions have been filed challenging the order in this regard dated18.09.2009 cancelling the election conducted on 23.10.2008.(e) The decision taken to conduct the election in theabsence of the District Revenue Officer, Virudhunagar, is purelyviolation of the direction of the Madurai Bench of the Madras HighCourt. The presence of the Assistant Commissioner / ExecutiveOfficer on 23.10.2008 is not to be considered as representative ofthe department as per the direction of this Court. The secondrespondent had issued only instructions to the Joint Commissioner,Sivagangai to comply with the directions of this Court, made inW.P.Nos.9157 and 9159 of 2008.(f) The second respondent was not in a position to takefurther course of action in view of the interim orders passed in the https://hcservices.ecourts.gov.in/hcservices/ suits. Hence, clarification was sought before the Madurai Bench ofthis Court. The impugned order was passed only on therepresentations of S.A.Rajendran Poosari and S.R.M.Ramamurthy Poosariand not on the representation of the fifth respondent. Since theelection was not conducted as per the directions of this Court, thefifth respondent has been nominated as Chairman of the Board ofTrustees by the Government by proceedings dated 23.09.2009 as aninterim measure and now he is functioning as Chairman from 25.09.2009.Making those averments, the counter affidavit sought for thedismissal of the writ petition.7. Counter affidavit was filed on behalf of the fifthrespondent wherein the following facts have been set out:-(a) The writ petition is not maintainable since thepetitioners have got an alternative remedy available under the saidAct. Section 114 of the said Act contemplates the same.(b) It is false to state that except the fifth respondentand one Ramar Poosari, eight of the trustees were supporting thepetitioner. It is also not correct to state that election is soughtto be postponed at the instance of the fifth respondent.(c) The Madurai Bench of the Madras High Court, by itsorder dated 20.10.2008 directed to conduct the election in thepresence of the District Revenue Officer, Virudhunagar, who shall bethe observer of the election. However, he was not invited well inadvance as ordered by the Court, but, invited her only in theafternoon of 22.10.2008 to be the observer of the election scheduledto be held on 23.10.2008. The District Revenue Officer through herproceedings dated 22.10.2008 had required certain particulars. Thus,the election said to have been conducted is in absolute violation ofthe orders passed by the Madurai Bench of this Court. In the abovecircumstances, with an intention to safeguard the interest of thetemple, the first respondent nominated him as the temporary Chairmanof the Board of Trustees.Thus, the counter affidavit sought for the dismissal of the writpetition.8. Counter affidavit was filed by the fifth respondent inW.P.No.20146 of 2009 in tune with the counter affidavit filed inW.P.No.19636 of 2009. 9. I have heard Mr.K.Alagirisamy, learned Senior Counselappearing for the petitioner, Mr.T.Chandrasekaran, learned SpecialGovernment Pleader, appearing for respondents 1 to 4, Mr.R.Gandhi,learned Senior Counsel appearing for the fifth respondent andMrs.Hema Sampath, learned Senior Counsel appearing for the seventh https://hcservices.ecourts.gov.in/hcservices/ respondent in W.P.No.19636 of 2009 and Mr.R.Shamnugasundaram, learnedSenior Counsel appearing for the petitioners, Mr.T.Chandrasekaran,learned Special Government Pleader, appearing for respondents 1 to 4,Mr.R.Gandhi, learned Senior Counsel appearing for the fifthrespondent and Mrs.Hema Sampath, learned Senior Counsel appearing forrespondents 7 and 8 in W.P.No.20146 of 2009.10. The traversing of facts before the filing of the writpetitions before the Madurai Bench of the Madras High Court may notbe much relevant to the issues raised in the present writ petitionsand hence, those facts are not dealt with here under. 11. Suffice it to say that one S.R.Muthurama Poosari filedR.P.No.48 of 2008 challenging the election notice dated 13.08.2008and for staying the election. The second respondent viz., theCommissioner, H.R. & C.E. Department had passed an exparte orderstaying the participation of one S.R.M.Ramamurthi Poosari, thepetitioner in W.P.No.19636 of 2009 and the second petitioner inW.P.No.20146 of 2009. The third respondent, viz., the JointCommissioner of H.R. & C.E. Department, pursuant to the order of thesecond respondent, in his proceedings dated 10.10.2008, directedpostponement of the election by ten days. Hence, the election couldnot be held on 13.10.2008 and it was postponed to 23.10.2008. Again,the second respondent seems to have passed an order in R.P.No.48 of2008 extending his earlier order and granting stay of participationof the petitioner in W.P.No.19636 of 2009 in the election. Hence,he had approached the Madurai Bench of the Madras High Court byfiling a writ petition in W.P.No.9157 of 2008 to quash the saidorder. The then Chairman of the Board of Trustee also seems to havefiled a writ petition in W.P.No.9159 of 2008 to go ahead with theelection scheduled to be held on 23.10.2008. By a common order dated23.10.2008, both the writ petitions were disposed of. Paragraphs 19to 23 of the said order are usefully extracted here under:-" 19. In the result, the W.P.No.9157 of 2008 isordered setting aside the stay granted and extended by theCommissioner and it is directed hereby that the existingeleven trustees referred to supra should be allowed toparticipate in the election either as candidates or votersas the case may be and there need not be any embargo. TheW.P.No.9159 of 2008 is ordered to the effect that theelection shall be conducted on 23.10.2008 or on such otherdate within 27.10.2008 as may be decided by the trusteesand the Chairman be elected. Both the writ petitions areordered subject to the outcome of the probe or enquiryproceedings, which is pending before the Commissioner.20. The learned counsel appearing for the petitionersin unison would submit that an Advocate Commissioner may beappointed as observer as they are having some reservation https://hcservices.ecourts.gov.in/hcservices/ relating to the Hindu Religious and Charitable Endowmentsofficial's or revenue official's participation as observerin the election.21. I am of the considered opinion that there need notbe any apprehension on the part of the petitioners and theDistrict Revenue Officer, Virudhunagar shall be theobserver for the said election and to that effect thepresent Chairman shall invite him well in advance, and hecould see to it that the election process is going onsmoothly. If necessary, the District Revenue Officer mayarrange for police protection in that regard.22. Untrammeled and uninfluenced by any of theobservations made by this Court in disposing of these writpetitions, the Commissioner, Hindu Religious and CharitableEndowments Department, shall be at liberty to dispose ofthe pending matter before him in the form of affidavitfiled by Muthuraman Poosari, dated 07.10.2008, as per law,purely on merits.23. With the above directions, these writ petitionsare disposed of. No costs. Consequently, connectedmiscellaneous petitions are closed."12. Pursuant to the said order, the then Chairman RajendraPoosari through a telegram dated 21.10.2008 informed the DistrictRevenue Officer, Virudhunagar about the election to be conducted.Seeking some clarification, the District Revenue Officer,Virudhungar, by her letter dated 22.10.2008 sought to postpone theelection. However, the election seems to have been conducted on23.10.2008 and S.R.M.Ramamurthi Poosari, the petitioner inW.P.No.19636 of 2009 was elected as Chairman of the Board ofTrustees. The fourth respondent viz., the Executive Officer ofArulmigu Mariamman Thirukkoil, Irukkangudi, seems to have beenpresent at the instance of the Commissioner, H.R. & C.E., during theelection.13. Thereupon, the fifth respondent in both the writpetitions viz., S.Sethulingam Poosari seems to have filed a suit andobtained interim orders and thereafter, the same was challenged in arevision before this Court in C.R.P.No.4051 of 2008. In the saidrevision, interim suspension of the order of injunction given by theCivil Court was granted and the suits were directed to be disposed of.14. M.P.No.1 of 2009 in W.P.No.9157 of 2008 at the instanceof the Government, Commissioner and the Joint Commissioner, H.R. &C.E., seeking clarification of the order made in W.P.Nos.9157 and9159 of 2008 was filed. However, the same was dismissed. The ordermade thereunder is usefully extracted here under:- https://hcservices.ecourts.gov.in/hcservices/ " The above miscellaneous petitions have been filed toclarify the common order dated 20.10.2008 made in W.P.(MD)Nos.9157 and 9159 of 2008.2. The matter pertains to an election to be conductedto the Chairman and members of trustees of the fourthrespondent temple. This Court by a detailed order dated20.10.2008 has disposed of both the writ petitions givingvarious directions.3. The present petitions have been filed by thepetitioners setting out certain factual details andcontending that the directions issued by this Court had notbeen given effect to. It is further stated in theaffidavit that the directions given in the order has notbeen strictly followed and it has been violated by thepetitioners therein and therefore, the present petitionshave been filed seeking clarification as well as forfurther directions by this Court.4. In my view, as the writ petitions have been finallydisposed of, any person who is aggrieved by such order isentitled to file an appeal or seek such other remedyavailable to him. A violation or non compliance of anorder passed by this Court cannot give raise to a cause ofaction to seek for clarification of the order. Ultimately,the Government and the Hindu Religious and CharitableEndowments Department, have sufficient powers under the Actto issue necessary orders based on such elections whichhave been conducted. Therefore, there is no need toclarify the order and in my view that order is clear and itis always open to the Government and the Department toinitiate appropriate action in accordance with law. Inview of the above these petitions are dismissed."15. Thereupon, the second respondent had passed theimpugned order dated 18.09.2009 setting aside the election held on23.10.2008 and holding that the election shall be conducted afterfollowing all the relevant rules in the presence of the DistrictRevenue Officer, Virudhunagar. The said order is under challenge inW.P.No.19636 of 2009. By an order dated 23.09.2009, the saidSethulingam Poosari was appointed as a Fit Person / Chairman of theBoard of Trustees. The said order is under challenge in the otherwrit petition viz, W.P.No.20146 of 2009.16. The first and foremost contention that was raised onbehalf of the respondents, which deserves to be considered is,whether the writ petitions could be entertained in view of the https://hcservices.ecourts.gov.in/hcservices/ alternative remedy available under the said Act. Section 114 of thesaid Act contemplates filing of the suit. (a) Mr.R.Gandhi, learned Senior Counsel appearing for thecontesting respondent viz., 5th respondent in both the writ petitionsas well as Mr.T.Chandrasekaran, learned Special Government Pleaderappearing for the Department vehemently contended that when analternative remedy is available, the petitioners cannot approach thisCourt by filing the present writ petitions exercising the power underArticle 226 of The Constitution of India. (b) On the other hand, it was contended on behalf ofthe petitioners that such an alternative remedy, if not effective orif the impugned orders were passed violating the principles ofnatural justice, without availing the alternative remedy, a writpetition could be maintained before this Court. (c) Anxiously considered the said contention raised inthis regard. However, I am of the considered view that the saidcontention raised by the contesting respondent viz., fifth respondentin both the writ petitions as well as the Department, has to berejected on the following grounds:- (i) If the impugned orders have been passedviolating the principles of natural justice, still the partiescannot be driven to exhaust the alternative remedy availableunder the said Act. In the case on hand, the Commissioner,H.R. & C.E., has passed the order dated 18.09.2009 settingaside the election already conducted without even notice to thepersons, who have been elected thereby violated the principlesof natural justice. (ii) Further, the alternative remedy availableshould be effective and efficacious. To drive the parties tofile a suit to set at naught the order passed by theCommissioner, H.R. & C.E., who has set aside the election,would not be efficacious remedy, since it will take very numberof years to see the finality in the suit. (d) Hence, on the grounds set out above, I am of theconsidered view that even though there exists an alternative remedy,the parties cannot be driven to exhaust the same. Thus, thecontention raised by the Department as well as the fifth respondentin both the writ petitions, is liable to be rejected and accordingly,rejected. 17.1. The next contention that has been raised onbehalf of the petitioners are that the Commissioner, H.R. & C.E., hadcancelled the election already held, by his proceedings dated18.09.2009, without due notice to them and without hearing them. It https://hcservices.ecourts.gov.in/hcservices/ is nobody’s case that the Commissioner, H.R. & C.E., had passed theimpugned order canceling the election after due notice to the personswho have been elected. The impugned order dated 18.09.2009 wouldreveal that two references were made thereunder viz., (i) The letter of the outgoing Chairman of the Boardof Trustees dated 23.10.2008; and (ii) The letter of one Ramamurthy Poosari, who hasbeen elected in the election held on 23.10.2008. 17.2. Absolutely, the impugned order does not disclose thatan opportunity was given to the elected Chairman of the BoardTrustees before passing the said order. The only ground that wastaken by the Commissioner, H.R. & C.E., was that the election was notconducted in the presence of the District Revenue Officer,Virudhunagar, as directed by the Madurai Bench of the Madras HighCourt in W.P.Nos.9157 and 9159 of 2008. Even assuming that theelection was conducted not inconsonance with the orders madethereunder, that may not give raise to the Commissioner, H.R. & C.E.,to set at naught the election that was already conducted. Evenassuming that could be the reason, the same should have been doneafter due notice to the concerned persons before canceling theelection. 18. This leads to the next question as to whether suchnotice is necessary. To substantiate whether the Commissioner, H.R.& C.E., has got such power and under what provisions he has got suchpower, Mr.T.Chandrasekaran, learned Special Government Pleaderappearing for the Department would submit that the supervisory poweris available with the Commissioner as per Section 23 of the said Act. Section 23 of the said Act reads as follows:- Section 23:- Power and duties of the Commissioner inrespect of temples and religious endowments:- Subject tothe provisions of this Act, the administration of alltemples (including specific endowments attached thereto) andall religious endowments) shall be subject to the generalsuperintendence and control of the Commissioner and suchsuperintendence and control shall include the power to passany orders which may be deemed necessary to ensure that suchtemples and endowments are properly administered and thattheir income is duly appropriated for the purposes for whichthey were founded or exist:Provided that the Commissioner shall not pass any orderprejudicial to any temple or endowments unless the trusteesconcerned had a reasonable opportunity of making theirrepresentations." https://hcservices.ecourts.gov.in/hcservices/

18.1. As per the above provisions, the Commissioner nodoubt has got general power over administration of the temple andcould pass any order which may be deemed necessary, however, provisoto Section 23 makes it very clear that the said power can beexercised by him only after giving a reasonable opportunity to theconcerned persons for making their representations. 18.2. Considering the discussions made above, I am ofthe considered view that the Commissioner, H.R. & C.E., ought to havepassed an order after hearing the parties concerned and failure to doso is a clear violation of the principles of natural justice. 18.3. In view of the above stated position, theimpugned order dated 18.09.2009 of the second respondent is liable tobe set aside.19. The next question that arises for consideration is,whether the first respondent viz., the Government is justified inappointing the Fit Person / Chairman of the Board of Trustees. Thesaid order also points out that the second respondent pointed outthat election was originally conducted without the presence of theDistrict Revenue Officer, Virudhunagar, thereby violating the ordersmade in W.P.Nos.9157 and 9159 of 2008. The order in question wasmade only on the recommendation made by the second respondent. Thediscussions made above will amply prove that the second respondenthas passed the impugned order dated 18.09.2009 without affordingopportunity to the petitioner which deserves to be set aside. Whileso, on his recommendation, the fifth respondent was appointed astemporary Chairman without any rhyme or reason. It is not made clearwhy the fifth respondent was appointed so. Hence, the order of thefirst respondent has to go. 20. However, I am of the considered view that the electionought to have been conducted in the presence of the District RevenueOfficer, Virudhunagar. Even assuming that he has been informed of theelection and that he has not chosen to attend the election raisingcertain doubts, election should not have been conducted without thepresence of the District Revenue Officer, Virudhunagar, since in theorder made in W.P.Nos.9157 and 9159 of 2008, it was made clear thatthe election shall be conducted in the presence of the DistrictRevenue Officer, Virudhunagar. 21. Mr.K.Alagirisamy, learned Senior Counsel appearing forthe petitioner in W.P.No.19636 of 2009 as well as Mrs.Hema Sampath,learned Senior Counsel appearing for respondents 7 and 8 inW.P.No.19636 of 2009 and Mr.R.Shanmughasundaram, learned SeniorCounsel appearing for the petitioners in W.P.No.20146 of 2009 havemade it very clear that the election could be conducted henceforthin the presence of the District Revenue Officer, Virudhunagar andalso in the presence of an Advocate Commissioner to oversee the https://hcservices.ecourts.gov.in/hcservices/ election. However, Mr.T.Chandrasekaran, learned Special GovernmentPleader appearing for the Department as well as Mr.R.Gandhi, learnedSenior Counsel appearing for the fifth respondent in both the writpetitions opposed the conduct of election. 22. In view of the reasons given above, I am of theconsidered view that the matter could be sorted out by directing theelection to be conducted in the presence of the District RevenueOfficer, Virudhunagar as well as in the presence of an AdvocateCommissioner, who could be appointed by this Court. None would beprejudiced by such election. 23. Accordingly, Mr.D.Sivaraman, Advocate, No.38, HighCourt Law Chamber, Madurai – 23, is appointed as an AdvocateCommissioner to oversee the process and to conduct the election afterintimating the same to all the Trustees. The Advocate Commissionershall cause a three days notice in advance to the District RevenueOfficer, Virudhunagar, who shall be present at the time of theelection without raising any doubt or objection. He can also seekpolice protection for smooth functioning of the election.24. Thus, in nutshell, it is held that --(a) The writ petitions filed challenging the order of thesecond respondent, the Commissioner, H.R. & C.E., dated 18.09.2009and the order of the first respondent Government dated 23.09.2009,appointing the fifth respondent as Fit Person / Chairman of the Boardof Trustee temporarily till election is conducted, is maintainablewithout exhausting alternative remedy on the reasonings stated inpara 16 of the judgment.(b) The order of the second respondent without notice tothe petitioners, is liable to be set aside on the reasonings set outin para 17.1 and 17.2.(c) Notice by the second respondent to the petitioners arenecessary before passing such impugned order dated 18.09.2009 for thereason set out in paragraphs 18, 18.1 to 18.3.(d) On the death of some of the respondents, the writproceeding does not abate as a whole but abates against the deceasedrespondents.(e) Mr.D.Sivaraman, the Advocate Commissioner shallconduct the election for the board of trustees of the temple inquestion within one month from the date of receipt or production of acopy of this order, whichever is earlier. He shall conduct theelection in the presence of the District Revenue Officer,Virudhunagar as indicated in para 23. https://hcservices.ecourts.gov.in/hcservices/ (f) A sum of Rs.30,000/- (Rupees thirty thousand only) hasto be paid by the petitioners directly to the Advocate Commissioneras remuneration.25. Both the writ petitions are ordered accordingly. Noorder as to costs. Consequently, connected miscellaneous petitionsare closed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarsbiTo1. The Secretary to Government, Hindu Religious and Charitable Endowment Department, Fort St. George, Chennai.2. The Commissioner, Hindu Religious and Charitable Endowment Department, Nungambakkam High Road, Chennai-34.3. The Joint Commissioner, Hindu Religious and Charitable Endowments Department, Sivagangai.4. The Executive Officer, Arulmigu Mariammal Thirukkoil, Irukkangudi, Sattur Taluk, Virudhunagar District.5. Mr. D. Sivaraman, Advocate, No.38, High Court Law Chamber, Madurai.6. The District Revenue Officer, Virudhunagar.7. The Secretary to Government, Tamil Development, Religious Endowments and Information, Fort St. George, Chennai.+ 1 c.c. to Mr. S. Conscious Ilango, Advocate. S.R.No.71678.+ 1 c.c. to Mr. M. Muthappan, Advocate. S.R.No.71679.+ 1 c.c. to Mr. S.D. Ramalingam, Advocate. S.R.No.71567.+ 1 c.c. to The Government Pleader. S.R.Nos.71621 & 71623. W.P.No.19636 and 20146 of 2009SR (CO)GSK 24.02.2010.