Judgment :- By consent, the writ petition is taken up for final disposal. 2. The petitioner is aggrieved by an order passed by the first respondent under Section 45 (1) of the Tamil Nadu Hindu Religious and Charitable Endowment Act (hereinafter referred to as 'the Act'), appointing an Executive Officer in respect of the third respondent temple. According to the petitioner, his father, grand father, and great grand fathers were functioning as hereditary trustees of the temple for more than 100 years and there is one another hereditary trustee of the temple by name Thiru. Perumal Muthuraja. After the demise of the said Perumal Muthuraja his son Mr. Vaithiyalingam is functioning as the hereditary trustee. The petitioner and the said Perumal Muthuraja filed a petition under Section 69/1 of the Act before the Deputy Commissioner, Hindu Religious and Charitable Endowment Board, in O.A.No.262/1976, the said petition came to be dismissed by an order dated 21.11.1977. Aggrieved by the said order, an appeal was preferred to the first respondent in A.P.No.51 of 1978 which was allowed by the first respondent by an order dated 29.06.1981. By virtue of the said order, the petitioner and Perumal Muthuraja were declared as hereditary trustees of the temple. Whileso, the first respondent by the impugned order, appointed the third respondent as Executive Officer of the temple. The said order is questioned primarily on the ground that it violates the principles of natural justice since no opportunity was given to the petitioner before passing the impugned order. 3. A counter affidavit has been filed by the second respondent stating that the temples namely, Arulmigu Mariamman, Vinayagar and Thottichiamman etc., situated at Chokanathapuram village, Thuraiyur Taluk, Tiruchirappalli District are within the meaning of Section 6(20) of the Act and are under administrative and supervisory control of the respondent Department. It is further stated that the temple has not been included in the list published under Section 46 of the Act and the office of trusteeship of the temple was declared to be hereditary in terms of Section 63(b) of the Act by an order passed in A.P.No.51 of 1978 and accordingly, the petitioner and P. Vaithialingam are functioning as hereditary trustees of the temple. It is further stated that there is no consensus between the hereditary trustees in managing the affairs of the temple which led to the filing of the writ petitions and appeal before this Court relating to performance of festival in the temple and as cold war and quarrel prevailed between the two trustees, which affected the administration of the temple. By mutual consent of both the hereditary trustees and based on which the order under Section 45 (1) of the Act came to be passed by the first respondent. Since, it was mentioned as hereditary trustee in the order, an erratum was issued to correct the mistake and substitute the word hereditary trustee with the words non hereditary trustee. In view of the consent granted by both the non hereditary trustees, for appointment of an Executive Officer, the impugned order was passed and as such does not suffer from any illegality. Based on the above pleadings, the second respondent prayed for the dismissal of the writ petition. 4. Heard Mr. S. Muthukrishnan, learned counsel for the petitioner and Mr. K.M. Vijayakumar, learned Additional Government Pleader for the respondents and perused the materials available on record. 5. The learned counsel for the petitioner while reiterating the contentions raised in the affidavit would submit that it is true that the second respondent had obtained the signatures of both the petitioner and other trustee P. Vaithialingam on 20.06.2008 stating that they shall consent for appointment of Executive Officer in terms of Section 45(1) of the Act. But even if such consent is granted, the first respondent while exercising the power under Section 45 ought to issue notice to the petitioner and other non hereditary trustee, before passing an order and such procedure has not been complied with. 6. Learned counsel placed reliance on a decision of a Division Bench of this Court in Commissioner, Hindu Religious and Charitable Endowments (Administration) Department, Madras Vs. K. Jothiramalingam and Another reported in AIR 1985 Madras 341 and stated that as per the law laid down in the said Division Bench judgment a show cause notice is essential prior to passing an order under Section 45(1) of the Act. Therefore, learned counsel would submit that the impugned order is liable to be set aside on this ground alone. 7. Therefore, learned counsel would submit that the impugned order is liable to be set aside on this ground alone. 7. Per contra, learned Additional Government Pleader would contend that the Executive Officer was appointed under Section 45(1) after the second respondent recorded the consent of the petitioner and the other non hereditary trustee and therefore, the question of issuance of a notice does not arise in the instant case. 8. As could be seen from Section 45 of the Act the said provision empowers the Commissioner, to appoint an Executive Officer to any religious institution, other than a math or a temple under its control and assign duties to him and the Executive Officer so appointed shall be under the disciplinary control of the Commissioner. Though under the said provision, it has not been specifically provided for an issuance of a notice before exercising the power of appointing the Executive Officer, the principles of natural justice would require that the non hereditary trustees as in this case who are in actual control and management in day today administration of the temple should be given notice and opportunity to show cause against such appointment. However, it is the case of the respondent that such procedure need not be followed in the instant case because of the consent. It is to be noted that the consent has been recorded by the second respondent and not the first respondent. In terms of Section 45, it is only the first respondent shall exercise power to appoint an Executive Officer. Therefore, even if the second respondent has recorded the consent, at best it could be a material based on which the first respondent could invoke the power under Section 45. It has been held that the consent granted by the parties to a proceedings should be unequivocal, voluntary and unambiguous, further such consent should be subsisting and continue to subsist till, the proceedings are culminated. Therefore, the first respondent ought to have issued a notice to the petitioner by relying upon such consent and calling upon to explain as to why power under Section 45 of the Act should not be exercised. In the instant case, the first respondent without resorting to such a procedure, proceeded to appoint the Executive Officer, solely relying upon the report submitted by the second respondent. In the instant case, the first respondent without resorting to such a procedure, proceeded to appoint the Executive Officer, solely relying upon the report submitted by the second respondent. In my view, this procedure would amount to violation of principles of natural justice since the first respondent had no occasion to consider as to whether such consent recorded by the second respondent was subsisting while the power under Section 45 (1) came to be invoked. 9. The Hon'ble Division Bench in the above referred case has held that by the appointment of an Executive Officer under Section 45(1) of the Act, coupled with the conferment on him of all or almost all of the powers would be to relegate the hereditary trustee to the post of non entity and therefore, the power vested in the Commissioner under Section 45(1) of the Act, being a very drastic one, it has to be exercised cautiously, reasonably and fairly as exercise of such power may even result in the effective elimination of the hereditary trustee from management and administration of the institution. Therefore, the Hon'ble Division Bench of this Court held that natural justice and fair play require that the Commissioner should properly exercise the power under Section 45(1)of the Act, after being satisfied that the institution has not been properly managed and the then administration leaves much to be desired and requires to be toned up or improved and the appointment of an Executive Officer is justified to secure such better administration. The Division Bench also took note of the fact that though Section 45(1) of the Act does not contemplate any notice or enquiry, such power cannot be exercised without following the principles of natural justice. In the present case, the impugned order has been passed solely based on the report submitted by the second respondent, dated 06.08.2008, and except for such report there is no specific finding rendered by the first respondent as to under what circumstances, the institution has not been properly managed and the administration requires to be toned up or improved, which would justify the appointment of an Executive Officer in order to secure better administration. 10. Therefore, I am satisfied that the impugned order has been passed without affording an opportunity to the petitioner and without resorting to a specific finding as to why such power is exercised. 10. Therefore, I am satisfied that the impugned order has been passed without affording an opportunity to the petitioner and without resorting to a specific finding as to why such power is exercised. For the above reasons, the petitioner has to succeed and accordingly, the writ petition is allowed and the impugned order is set aside and the matter is remanded back to the first respondent to consider the matter afresh after issuing notice to the petitioner and other non hereditary trustee and thereafter, conduct enquiry and pass appropriate orders, in accordance with law after considering the facts and circumstances of the case as well as the other materials. 11. If the first respondent proposes to rely upon any material or report which is adverse to the interest of non hereditary trustees, the same shall be furnished to the petitioner to enable the petitioner to submit his objections if any. The above exercise shall be completed within a period of three months from the date of receipt of a copy of this order. No costs. Consequently, M.P.(MD)No.1 of 2009 is closed.