Proper consideration, adequate enquiry, and reasoned decision are essential before appointing non-hereditary trustees under S.39(2) of the Madras Hindu Religious and Charitable Endowments Act, 1951.

1. S.39(2) of the Madras Hindu Religious and Charitable Endowments Act, 1951 reads:

"39. (I) (2) Where, in the case of any such institution having a hereditary trustee or trustees, the Commissioner after notice to such trustee or trustees, and after such enquiry as as he deems adequate, considers for reasons to be recorded, that the affairs of the institution are not, and are not likely to be properly managed by the hereditary trustee or trustees, the Commissioner may, by order appoint such number of non-hereditary trustees as he thinks necessary, so however that the total number of trustees does not exceed five.".

The power of the commissioner under S.39 (2) could be exercised by an Area Committee which has jurisdiction in the area. This is the provision in S.41 (1) of the Act.

2. Sree Thekkiniyedath Siva Temple, Kinavallur is one in respect of which the Area Committee had jurisdiction. In exercise of the power of the Area Committee a notice was issued to the petitioner, the hereditary trustee of the temple. In this the trustee was called upon to show cause why non-hereditary trustees should not be appointed for the temple as provided in S.39 of the Act for its better management. The notice, Ext. P1, made reference to certain irregularities in the management of the temple said to have been noticed during the visit of the Assistant Commissioner to the temple on 26 61972. The charges were such as that the hereditary trustee was permanently residing at Thiruvillamala and was seldom visiting the temple, that he was not paying salary of the temple servants in time, he was not supplying the articles required for daily pooja, that he was not properly tapping the vazhivadu income and such other matters. By a reply, Ext. P2, the petitioner refuted the charges and maintained that the affairs of the temple were being looked after in as proper a manner as possible and therefore there was no scope for appointment of non-hereditary trustees. This objection was filed as early as in July, 1972. By a letter dated 17 9-1973 the Assistant Commissioner who was the Chairman of the Area Committee informed the petitioner that in exercise of the powers vested in the Area Committee under S.41 of the Act 3 non-hereditary trustees were being appointed for a period of five years in accordance with the resolution of the Area Committee. This letter cited 3 letters of the Inspector and the resolution of the Area Committee. The petitioner got copies of the letters but not of the resolution. These copies of letters, Exts. P4, P5 and P6, only indicate that the Inspector was all along on the look out for suitable persons for appointment as non-hereditary trustees. These are produced to show that the reference in Ext. P3 letter is not in regard to charges against the petitioner, but only enquiries made by Inspector to find out suitable non-hereditary trustees. I had occasion to peruse the copy of the resolution which is in the file made available to me by counsel and that resolution also does not indicate that there was any consideration of the objection excepting for a mere observation that the reply did not deserve consideration. On going through the file I further find that even at the time the resolution was passed to issue notice to the petitioner, the notice which was later sent as Ext. P1, it had been decided to call for application evidently indicating that even while issuing the notice to the petitioner to show cause the course to be adopted finally had been decided upon.

3. I have already referred to S.39(2). It goes without saying that this section requires a proper consideration by the Area Committee of the objections submitted by the hereditary trustee The section contemplates issue of notice to the trustee or trustees. That is evidently with a view to enable the trustee or trustees to place the case before the Area Committee. That would necessarily mean that there is an obligation on the part of the Area Committee to consider such objectio