W.P.No.25803 of 2022
and W.M.P.Nos.24861 & 24862 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.09.2022
CORAM:
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
W.P.No.25803 of 2022
and W.M.P.Nos.24861 & 24862 of 2022
S.Sarveshwaran Achari,
S/o.Sambantham Achari,
Managing Trustee,
Chennai Sri Kalikambal
Kamadeswarar Devasthanam,
No.212, Thambu Chetty Street,
Chennai - 600 001. ... Petitioner
versus
1.The State of Tamil Nadu,
Rep. by its Secretary to Government,
Tourism, Culture and Endowment Department,
Fort St.George, Chennai - 600 009.
2.The Commissioner,
Hindu Religious and Charitable Endowments Department,
No.119, Uthamar Gandhi Salai,
Nungambakkam,
Chennai - 600 034.
3.The Joint Commissioner,
Hindu Religious and Charitable Endowments Department,
Chennai Division - I,
Yadhaval Street, Padi,
Chennai - 600 050. ... Respondents
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https://www.mhc.tn.gov.in/judis
W.P.No.25803 of 2022
and W.M.P.Nos.24861 & 24862 of 2022
PRAYER: Writ Petition is filed under Article 226 of the Constitution of
India, seeking for a Writ of Certiorarified Mandamus, calling for the records
of the respondents, particularly that of the second respondent in
G.O.Ms.No.103 dated 23.09.2020 and quash the same as illegal, ultra vires
and without jurisdiction and contravention to the scheme decree passed in
C.S.No.62 of 1933 dated 25.09.1935 and consequently direct the
respondents to confirm the tenure of 3 years for the elected board of
Trustees who are holding office in Chennai Sri Kalikambal Kamadeswarar
Devasthanam at No.212, Thambu Chetty Street, Chennai-600 001, for 3
years as fixed by scheme decree passed in C.S.No.62 of 1933 dated
25.09.1935 and accordingly permit the present Board of Trustees to
continue to hold and discharge their office until 01.10.2023.
For Petitioner : Mr.T.S.Rajamohan
For Respondents : Mr.N.R.R.Arun Natarajan
Special Government Pleader (HR&CE)
ORDER
This Writ Petition is filed for issuance of writ of certiorarified mandamus to quash the impugned Government Order vide G.O.Ms.No.103 dated 23.09.2020 passed by the second respondent as illegal and without jurisdiction and contravention to the scheme decree passed in C.S.No.62 of 1933 dated 25.09.1935 and also to direct the respondents to confirm the tenure of the elected board of Trustees for a period of three years.
2. By consent of both sides, this writ petition is disposed of at the stage of admission itself.
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3. It is the case of the petitioner that 'Sri Kalikambal Temple' in Chennai is governed by the scheme decree in C.S.No.62 of 1933 dated 25.09.1935. It is stated that the scheme decree with regard to tenure of office of the elected Trustees was followed till date. However by the impugned order, it is stated that the tenure of office of the elected Trustees was for a period of two years. Therefore, the petitioner submitted a representation before the respondents for extension of his term for one more year on the basis of the scheme decree.
4. The earlier writ petition filed by the petitioner to consider his representation dated 09.06.2021 was also disposed of, with a direction to the first respondent to consider the representation of the petitioner within a period of eight weeks from the date of fresh representation. An observation was also made by the learned single Judge while disposing of the writ petition that till orders are passed in the representation of the petitioner, the respondents shall not disturb the term of the petitioner.
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5. The learned counsel for the petitioner referred to the scheme decree in C.S.No.62 of 1993 dated 25.09.1935. Clause 5 of the scheme decree read as follows:-
“(5) Subject to the Provisions herein contained, every Trustee appointed by the Court in the manner hereinafter provided shall hold office for a period of three years from the date of his appointment, and he shall be eligible for reappointment provided he is otherwise qualified.”
6. No doubt, it is true that the scheme decree provides every trustee appointed by the Court in the manner provided shall hold office for a period of three years from the date of his appointment. To appreciate the legal issue raised by the learned counsel for the petitioner, this Court has to examine the power of the first respondent and the scope of a few statutory provisions under The Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 [hereinafter referred to as “the Act”]
7. For the purpose of convenience, Sections 47, 50 and 118 of the Act, are extracted below:-
“47. Trustees and their number and term of offices.— (1) (a) Where a religious institution included in the list published under section 46 or in 4/16 https://www.mhc.tn.gov.in/judis W.P.No.25803 of 2022 and W.M.P.Nos.24861 & 24862 of 2022 respect of which the Assistant Commissioner has no power to appoint trustees, has no hereditary trustee,—
(i) in cases falling under clause (i) of section 46, the Joint Commissioner / Deputy Commissioner ;
(ii) in cases falling under clause (ii) of section 46, the Commissioner; and
(iii) in cases falling under clause (iii) of section 46, the Government, shall constitute a Board of Trustees:
[Provided that the Board of Trustees constituted under items (i) and (ii) of this clause shall, subject to the provisions of clause (c), consist of three persons appointed by the Joint Commissioner or the Deputy Commissioner or the Commissioner, as the case may be, from among the panel of names of persons sent by the District Committee concerned under sub-section (4) of section 7-A:] Provided further that, in addition to the persons appointed by the Joint Commissioner / Deputy Commissioner or the Commissioner under items (i) or (ii) of this clause, as the case may be, the Government may nominate two persons who are qualified for appointment as trustees under this Act, as members of the said Board of Trustees, having regard to the following matters, namely:—
(a) the interest of the public generally ;
(b) the income and the properties of the religious institutions;
(c) the number of worshipers and importance of the religious institutions as a pilgrim center ; and
(d) such other matters as may be prescribed.
(b) in respect of all the incorporated and unincorporated Devaswoms in the transferred territory, [the Government] shall constitute a single Board of Trustees ;5/16
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(c) every Board of Trustees constituted under clause (a) or clause (b) shall consist of not less than three and not more than five persons, of whom one shall be a member of the Scheduled Castes or Scheduled Tribes [and another one shall be a woman] :
Provided that [the Government, the Commissioner, the Joint Commissioner or the Deputy Commissioner], as the case may be, may, pending the constitution of such Board of Trustees under this sub-section, appoint a fit person to perform the functions of the Board of Trustees. [......] (2) Where, in the case of an institution include in the list published under section 46 having a hereditary trustee or trustees, [the Government, the Commissioner or the Joint/Deputy Commissioner], after notice to such trustee or trustees and after such enquiry as [the Government, the Commissioner or the Joint/Deputy Commissioner], as the case may be, 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 Government, the Commissioner or the Joint / Deputy Commissioner] may, by order, appoint a non-hereditary trustee or such number of non-hereditary trustees as may be considered necessary by [the Government, the Commissioner, or the Joint/Deputy Commissioner], as the case may be.
(3) Every trustee appointed under sub-section (1) and, subject to the result of an application, if any, filed under sub-section (4), every non-hereditary trustee appointed under sub-section (2) shall hold office for a term of [two years] unless in the meanwhile the trustee is removed or dismissed or his resignation is [accepted by the Government, the Commissioner or the Joint Commissioner / Deputy Commissioner, as the case may be], or he otherwise ceases to be a trustee.
6/16https://www.mhc.tn.gov.in/judis W.P.No.25803 of 2022 and W.M.P.Nos.24861 & 24862 of 2022 Provided that every trustee who has completed a term of office of one year on the 16th day of July 2006 shall cease to hold office forthwith and every trustee who completes a term of office of one year after such date shall cease to hold office on such completion :
Provided further that every trustee who has not completed a term of office of one year on the date of commencement of the Tamil Nadu Hindu Religious and Charitable Endowments (Amendment) Act, 2010 (Tamil Nadu Act 12 of 2010) shall continue to be the trustee for the period of two years from the date of his appointment.
(4) Where [the Government, the Commissioner or the Joint / Deputy Commissioner], by order, appoints a non-hereditary trustee or trustees, the hereditary trustee or trustees may, within thirty days of the receipt of the order, file an application to the Court to set aside or modify such order : Provided that the Court shall have no power to stay the order of [the Government, the Commissioner or the Joint / Deputy Commissioner], as the case may be, pending the disposal of the application.” “50. Power under [sections 47, 49 and 49-A] to be exercisable notwithstanding provisions in scheme.— The power to appoint trustees under section 47 or section 49 [or section 49-A] shall be exercisable notwithstanding that the scheme, if any, settled, or deemed under this Act to have been settled for the institution contains provision to the contrary. ” “118. Repeals and savings.— (1) The Madras Hindu Religious and Charitable Endowments Act, 1951 (Madras Act XIX of 1951) (hereinafter in this section referred to as the said Act) is hereby repealed.
(2) Notwithstanding the repeal of the said Act by sub-section (1)— 7/16 https://www.mhc.tn.gov.in/judis W.P.No.25803 of 2022 and W.M.P.Nos.24861 & 24862 of 2022
(a) all rules made, or deemed to have been made, notifications or certificates issued or deemed to have been issued, orders passed or deemed to have been passed, decisions made or deemed to have been made, proceedings or action taken or deemed to have been taken, schemes settled or deemed to have been settled and things done or deemed to have been done by the Government, the Commissioner, a Deputy Commissioner, an Area Committee or an Assistant Commissioner under the said Act, shall, in so far as they are not inconsistent with this Act, be deemed to have been made, issued, passed, taken, settled or done by the appropriate authority under the corresponding provisions of this Act, and shall have effect accordingly ;
(b) (i) if any provision contained in any scheme settled or deemed to have been settled under the Madras Hindu Religious and Charitable Endowments Act, 1926 (Madras Act II of 1927), including a scheme settled under section 92 of the Code of Civil Procedure, 1908 (Central Act V of 1908), and in force immediately before the 30th September 1951 is repugnant to any provision contained in this Act or the rules made thereunder, the latter provision shall prevail, and the former provision shall, to the extent of the repugnancy, be void ;
(ii) all powers conferred and all duties imposed by such scheme on any Court or Judge or any other person or body of persons not being a trustee or trustees or an honorary officer or servant of the religious institution or endowment, shall be exercised and discharged by the Commissioner, [Joint Commissioner, Deputy Commissioner] [. . .] or the Assistant Commissioner, as the case may be, in accordance with the provisions of this Act;
(c) all orders made under section 67 of the Madras Hindu Religious Endowments Act, 1926 (Madras Act II of 1927) shall, notwithstanding that they are inconsistent with this Act, continue in force, but any such 8/16 https://www.mhc.tn.gov.in/judis W.P.No.25803 of 2022 and W.M.P.Nos.24861 & 24862 of 2022 order may, at any time, be modified or cancelled by the [Joint Commissioner or the Deputy Commissioner, as the case may be], if it is an order made under sub-section (1) or sub-section (3) of that section and by the Commissioner if it is an order made under sub-section (4) or sub- section (5) of that section ; and any person aggrieved by any modification or cancellation made by the [Joint Commissioner or the Deputy Commissioner, as the case may be], may prefer an appeal to the Commissioner within such time as may be prescribed. (3) The mention of particular matter in this section shall not be held to prejudice or affect the general application of sections 8 and 18 of the [Tamil Nadu] General Clauses Act, 1891 ([Tamil Nadu] Act I of 1891), with regard to the effect of repeals.”
8. Sub-section (3) of Section 47 specifically authorise the first respondent to appoint non-hereditary trustee under sub-section (1) of Section 47 for a term of two years or until the trustee is removed or resign.
Therefore, the impugned order is strictly in adherence to the provisions of sub-section (3) of Section 47 of the Act.
9. Section 50 of the Act specifically confers the power to appoint trustees under Section 47 or Section 49 notwithstanding that a scheme, if any, settled, or deemed under this Act to have been settled for the institution contains provision to the contrary.
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10. Similarly, Section 118(2)(b) of the Act makes the position clear that if any provision contained in any scheme settled or deemed to have been settled under the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1926, including a scheme settled under section 92 of the Code of Civil Procedure, 1908 (Central Act V of 1908), and in force immediately before the 30th September 1951 is repugnant to any provision contained in this Act or the rules made thereunder, the latter provision shall prevail, and the former provision shall, to the extent of the repugnancy, be void.
11. When the provisions of the Act has made the position very clear, this Court has no difficulty in dealing with the issue raised by the learned counsel for the petitioner. The period specified in the order appointing the petitioner and others as trustees for a period of two years, though is contrary to the scheme, it will prevail.
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12. The learned counsel for the petitioner relied upon the judgment of the learned single Judge of this Court in a similar case in W.P.No.18551 of 2022 dated 08.08.2022 [R.Shampath vs. The Govt. of Tamil Nadu] wherein the learned Judge has observed as follows:-
“25.The request of the petitioners for continuation of Board of Trustees beyond the period of two years also appears to be not in inconsonance with the provisions of Section 47 read with Section 50 and Section 118(2)(b) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959.
26.Under these circumstances, I am inclined to dispose this Writ Petition by directing the respondents to consider the representation to be given by the petitioners afresh in the light of the above observations and pass appropriate orders within a period of six weeks from the date of receipt of a copy of this order in the background of Scheme Decree and the objective of the Scheme Decree and the provisions of Section 47 read with Section 50 and Section 118(2)(b) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959. Pending such exercise, the position held by the petitioners shall not be disturbed.
27.The petitioners are given liberty to give a fresh representation to the respondents, within a period of two weeks from the date of receipt of a copy of this order.”
13. This Court is unable to get any support from the said judgment to the arguments advanced by the learned counsel for the 11/16 https://www.mhc.tn.gov.in/judis W.P.No.25803 of 2022 and W.M.P.Nos.24861 & 24862 of 2022 petitioner in the present writ petition. This Court was conscious about the provisions of Sections 50 and 118(2)(b) of the Act. As a matter of fact, the learned single Judge has refused to accept the same arguments that is now advanced by the learned counsel for the petitioner before this Court.
However, a direction was issued to the respondents in the writ petition to consider the representation of the petitioner in the light of provisions of the Act as well as the scheme decree. It cannot be cited as a precedent in favour of the petitioner and this Court is convinced the impugned Government Order appointing Trustees for a period of two years is in accordance with law.
14. The learned counsel for the petitioner submitted that this Court earlier disposed of a writ petition in W.P.No.7725 of 2022 filed by the petitioner. The learned counsel relied upon paragraph no.6 of the order, which reads as follows:-
“5.From the copy of the representation of the petitioner dated 09.06.2021, it is seen that the petitioner is seeking the relief of extension of term of the Trustees for one year. The representation of the petitioner is dated 09.06.2021 and the 1st respondent has not passed any orders till date.12/16
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6.In view of the above materials, the petitioner is directed to give a fresh representation within a period of two weeks from the date of receipt of a copy of this order. On receipt of said representation, the 1st respondent is directed to consider the representation within eight weeks thereafter. Till orders are passed in the representation, the respondents are directed not to disturb the term of the petitioner.”
15. Even the direction of this Court not to disturb the term of the petitioner hold good till an order is passed. This is not a case where the petitioner has approached this complaining that by impugned order his terms of office is restricted. The impugned order challenged in this writ petition is in accordance with law particularly in accordance with Section 47(3) of the Act. The petitioner seeks extension of his tenure by relying upon the scheme decree that was passed in 1935. Referring to the judgment of the learned single Judge earlier, the petitioner cannot seek extension of his tenure.
16. The petitioner was appointed as a trustee by Government Order vide G.O.Ms.No.103 dated 23.09.2020 which is impugned in this writ petition. Having accepted trusteeship under the order, the petitioner challenges it at the fag-end of his tenure. This Court finds no bona fides in 13/16 https://www.mhc.tn.gov.in/judis W.P.No.25803 of 2022 and W.M.P.Nos.24861 & 24862 of 2022 the writ petition. Since the petitioner's claim is not supported by any legal ground, this writ petition is liable to be dismissed. Accordingly, this writ petition is dismissed. No costs. Consequently, connected Miscellaneous Petitions are closed. Having regard to the conduct of the petitioner, the respondents shall also consider his conduct and attitude in challenging the Government Order, when the petitioner file any application for being appointed as trustee in future.
23.09.2022
Speaking order / Non-speaking order
Index : Yes / No
Internet : Yes
sri
14/16
https://www.mhc.tn.gov.in/judis
W.P.No.25803 of 2022
and W.M.P.Nos.24861 & 24862 of 2022
To
1.The State of Tamil Nadu,
Rep. by its Secretary to Government,
Tourism, Culture and Endowment Department,
Fort St.George, Chennai - 600 009.
2.The Commissioner,
Hindu Religious and Charitable Endowments Department, No.119, Uthamar Gandhi Salai, Nungambakkam, Chennai - 600 034.
3.The Joint Commissioner, Hindu Religious and Charitable Endowments Department, Chennai Division - I, Yadhaval Street, Padi, Chennai - 600 050.
15/16https://www.mhc.tn.gov.in/judis W.P.No.25803 of 2022 and W.M.P.Nos.24861 & 24862 of 2022 S.S.SUNDAR, J.
sri W.P.No.25803 of 2022 and W.M.P.Nos.24861 & 24862 of 2022 23.09.2022 16/16 https://www.mhc.tn.gov.in/judis