B. SETHURAMALINGAM Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) BY consent the writ petition is taken up for final disposal.

(2.) THIS writ petition is filed to quash the order of the third respondent dated 29.6.2009 imposing surcharge of Rs.10,46,067/ -, which was confirmed in the order of the first respondent in G.O.Ms.No.649 dated 3.12.2010.

(3.) THE third respondent has filed counter affidavit on behalf of the respondents 1 to 4, 6, and 7. It is stated in the counter affidavit that the petitioner worked as Executive Officer of Arulmigu Mariamman Temple, Sanjeevirayanpettai, Salem from 3.8.2004 to 31.1.2008. Even though a fit person was discharging the functions of the Trustees of the Temple as a temporary measure till the constitution of the regular Board of Trustees, no policy decision can be taken by the 8th respondent as Fit Person. It is the bounden duty of the Executive Officer to collect income regularly as per the Collection of Income and Incurring of Expenditure Rules, 1961 framed under section 116(2)(x) of the Act to augment the income of the religious institution. It is also the duty of the Executive Officer to lease out the immovable property and rights of the Temple by following the procedures laid down in "The Religious Institution (Lease of Immovable Property) Rules, 1963" framed under section 116(2)(xiii) of the Act to derive more income to the Temple. Circulars were issued by the Commissioner of HR&CE prescribing conditions to conduct auction under which the successful bidder should make payment in lumpsum immediately. Neither the Fit person nor the Inspector has got any authority or competency to give any other direction as alleged by the petitioner granting permission to collect the auction amount in installments. Hence the surcharge proceeding was initiated for non -collection of amount relating to Fasli 1417 i.e, out of Rs.16,09,999/ - a sum of Rs.10,20,000/ - alone was collected and the petitioner failed to recover balance of Rs.5,89,999/ - during his tenure. Mere sending of notice to the auction bidder is not sufficient and if the bid amount has not been paid in full immediately, the Executive Officer has authority to cancel the auction and conduct re -auction. The petitioner failed to take positive steps to collect the balance amount or to conduct fresh auction. A sum of Rs.5 lakhs has to be collected as EMD however, petitioner has collected and accepted only Rs.3 lakhs, and thus there is balance of Rs.2 lakhs payable by the bidder. Even though show cause notice was issued for a sum of Rs.28,23,347/ - as surcharge, after considering the explanation submitted by the petitioner and as per the report of the present Executive Officer as well as the remarks of the Regional Audit Officer a sum of Rs.10,46,067/ - was found as actual loss to the Temple. Therefore, surcharge order was issued for the said sum against the petitioner. The petitioner having committed loss to the temple surcharge proceeding initiated and the orders passed are valid and requires no interference.