There should not be any Executive Officer/Fit Person-raj in Palani temple: Madurai Bench of MadrasHC

T.R.Ramesh v. The Commissioner, The Executive Officer/Fit person and The Secretary to the Government.

CITATION: W.P(MD).No.10903 of 2020 and W.M.P.(MD).Nos.9581 & 9582 of 2020

DECIDED ON: 22.9.2020

CORAM: THE HONOURABLE MR. JUSTICE G.R.SWAMINATHAN

The facts of the present case is that the Executive Office of Arulmighu Dhandayuthapani Swami Temple Palani issued a tender notification which bans the Uzhavara Pani which allows cleaning of temple by devotees as part of their customs.

The main issue in the present case was

Whether the Executive Officer of Arulmighu Dhandayuthapani Swami Temple, Palani is competent to issue the impugned tender notification inviting sealed tenders for providing house keeping service in the Hill temple and the institutions attached to it?

The main argument of the petitioner was the devotees are entitled to offer voluntary service known as “Uzhavara pani”. By entrusting the cleaning and maintenance works to outsiders in the name of house keeping contract, the temple management has infringed the rights of the devotees. The petitioner also contends that the impugned tender notification is violative of the provisions of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 and also states that Executive Officer of the temple acts as ex-officio Fit Person and such an official cannot take major decisions having financial implications.

The main contentions of the respondent was the petitioner is not a affected person and thus the petition wont be maintainable. The second respondent also contends that catering to sanitation, maintenance and cleanliness of the institution is of supreme importance. It requires systematic deployment of manpower. The voluntary service can be allowed in certain areas like dining hall. They also state that a fit person is entitled to discharge the functions of the trust board and thus impugned notification is valid.

The Court reasoned that the locus standi of the petitioner cannot be doubted as Article 25 of the Constitution confers the fundamental right to freely practise one's religion. In the case of Hindus, it would include the right to perform Uzhavara pani. The Court also stated various spiritual literature which has reference to the Uzhavara pani. Court relied on M.Imam Hussain vs. Government of Tamil Nadu and three others (WP(MD)No. 7661 of 2020) where a similar view was taken.

The court also looked through the appointment of fit person and absence of trustees in the temple. It reasoned that the appointment of fit person should be for a temporary period of time. It stated that the impugned tender notification has considerable financial implications. In the very nature of things, decisions in such matters will have to be taken only by a duly constituted trust board. When the same official combines in himself both the offices of Executive Officer and Fit Person, the mechanism of checks and balances goes.

A non-hereditary trustee can occupy the office only for a specific period. But in the instant case, for more than nine years and three months, the temple has been under the management of the Executive Officer who doubles as Fit Person. It has been held by the Constitution Bench of the Hon'ble Supreme Court in D.C. Wadhwa and Ors. vs. State of Bihar (1987) 1 SCC 378 that a constitutional authority cannot do indirectly what it is not permitted to do directly. Adoption of any subterfuge was characterised as a fraud on the Constitution. In the said decision, the Apex Court came down heavily on the Government of Bihar for having successively re-promulgated the ordinances. (Para 13)

As per Rule 11 of Collection of Income and the Incurring of Expenditure Rules, no expenditure shall be incurred without the written order of the trustee. The trustee shall satisfy himself that the expenditure is necessary and that it has budgetary sanction. The impugned tender notification has considerable financial implications. In the very nature of things, decisions in such matters will have to be taken only by a duly constituted trust board. When the same official combines in himself both the offices of Executive Officer and Fit Person, the mechanism of checks and balances goes. Executive Officers are appointed so that the trustees do not run amok. But if the Executive Officer himself is also made the fit person so that he can discharge the functions of a trustee, and such a situation continues for years together, it is certainly a fraud on the statute. (para 14)

The court also observed that:

Certain consequential directions have to be issued. The State Government as well as the controlling authorities will take all possible steps to ensure that the board of trustees is constituted for the second respondent temple as early as possible. Referring to certain disturbing developments in the State of Andhra Pradesh, today's editorial in the New Indian Express says thus :

“...Reconstituting temple trust boards with eminent Hindus and men of impeccable character would be a good start. Leaving the temples in the care of the bureaucracy and politicians hasn't helped...” These words are equally relevant to the State of Tamil Nadu.

The court further observed that

“It is the duty of this Court to ensure that the administration of the second respondent temple is carried on in accordance with the provisions of Tamil Nadu Act 22 of 1959 and the Rules framed thereunder. The tender notification has been issued by an official who is standing on this ice. Its tenuous nature has already been set out. In any event, a Fit Person cannot issue a notification of this nature. I, therefore, sustain the stand of the petitioner and quash the impugned tender notification.”( Para No 17)

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