Madras High Court
3 A.C.Chinnasamy vs 3 T.Sampath on 23 June, 2022
W.P.No.891 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.06.2022
CORAM
THE HON'BLE MR.JUSTICE N.ANAND VENKATESH
W.P.No.891 of 2015
and MP No.1 of 2015
1 P.Anbalagan
2 M.Sundar Rajan
3 A.C.Chinnasamy
..Petitioners
Vs.
1 The Commissioner,
H.r. & C.E. (Admn.) Department,
Having its Office at Nungambakkam High Road,
Chennai-600 034.
2 The Joint Commissioner,
H.R. & C.E.(Admn) Department,
Kotaimaraiamman Temple Complex, Salem.
3 T.Sampath,
S/o.Thiruvengadam, Semmanur Village,
Aranganaur Post, Mettur Taluk, Salem
District-636 451.
..Respondents
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W.P.No.891 of 2015
Prayer :- Writ petition filed under Article 226 of the Constitution of
India praying to issue a Writ of Certiorari to call for the records
relating to the impugned order passed by the Commissioner HR & CE
(admn) 1st respondent Chennai issued in R.C.No.47486/2014 D2 on
18.12.2014.
For Petitioner : M/s.Gayathri for
Mr.P.B.Balaji
For Respondent :Mr. Arun Natarajan
SGPC for HR&CE
MR.P.Mani for R3
ORDER
This writ petition has been filed challenging the order
passed by the Commissioner of HR&CE dismissing the petition filed to
condone the delay of 434 days in filing the appeal against the order
passed by the Joint Commissioner, Salem in recording the succession
under Section 54(1) of the Hindu Religious and Charitable
Endowments Act, 1959 (hereinafter called as the “Act”).
2. Heard the learned counsel for the petitioners and Mr.
Arun Natarajan, learned SGPC for HR&CE and Mr.P.Mani for learned
counsel appearing for 3rd respondent.
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W.P.No.891 of 2015
3. The 3rd respondent filed an application under Section
54(1) of the Act and sought for the recording of succession as a
hereditary trustee on the basis of a decree obtained in a civil suit.
The 2nd respondent by an order dated 18.05.2011 allowed the
application.
4. The petitioners aggrieved by the said order, filed an
appeal before the 1st respondent with a delay of 434 days. This
condone delay petition came to be dismissed by the 1st respondent
through an order dated 18.12.2014. Aggrieved by the same, the
petitioners have filed the present writ petition.
5. The issue involved in the present writ petition is squarely
covered by the judgement of the Hon'ble Supreme Court in
[Ganesan Vs. The Commissioner, the Tamil Nadu Hindu Religious
and Charitable Endowment Board and others] reported in 2019 3
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W.P.No.891 of 2015
CTC 469. The Hon'ble Supreme Court held that the Commissioner of
HR&CE while dealing with the appeal does not attain the character of
a Court and hence, Section 5 of the Limitation Act will not apply and
the Commissioner does not have the jurisdiction to condone the delay
in filing the appeal. The above judgement was followed up by this
Court in WP (MD) No.7657 of 2021 and by order dated 09.04.2021, it
was held as follows :-
4. The issue involved in the present case is squarely
covered by the judgment of the Hon'ble Supreme Court
in the case of Ganesan, represented by its Power Agent,
G.Rukmani Ganesan Vs. 1.The Commissioner, Tamil Nadu
Hindu Religious and Charitable Endowments Board,
Chennai, 2. The Joint Commissioner, Tamil Nadu Hindu
Religious and Charitable Endowments Board, Sivagangai
and 3. P.R.Ramanathan, Thirupathur Taluk, Sivaganga,
reported in 2019 3 CTC 469. The relevant portions in the
Judgment are extracted hereunder:-
“60. A Special or Local law can very well provide for
applicability of any provision of Limitation Act or
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W.P.No.891 of 2015
exclude applicability of any provision of Limitation Act.
The provisions of Limitation Act including Section 5 can
very well be applied in deciding an Appeal by Statutory
Authority which is not a Court by the Statutory scheme
of Special or Local Law. We, thus, need to notice the
provisions of Act, 1959, as to whether the scheme under
Act, 1959, shows that enactment intended to
apply Section 5 of the Limitation Act.
61. Section 110 provides for procedure and powers at
inquiries under Chapters V & VI. The Commissioner hears
appeals under Section 69 which is under Chapter V of
the Act. Section 110 of the Act is as follows:
“Section 110. Procedure and powers at inquiries under
Chapters V and VI.- (1) Where a Commissioner or a Joint
Commissioner or a Deputy Commissioner makes an
inquiry or hears an appeal under Chapter V or Chapter
VI, the inquiry shall be made and the appeal shall be
heard, as nearly as may be, in accordance with the
procedure applicable under the Code of Civil Procedure,
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W.P.No.891 of 2015
1908 (Central Act V of 1908) to the trial of suits or the
hearing of appeals, as the case may be.
(2) The provisions of the Indian Evidence Act,
1872 (Central Act I of 1872) and the Indian Oaths Act,
1873 (Central Act X of 1873), shall apply to such
inquiries and appeals.
(3) The Commissioner [or a Joint Commissioner or a
Deputy Commissioner] holding such inquiry or hearing
such an appeal shall be deemed to be a person acting
judicially within the meaning of the Judicial Officers
Protection Act, 1850 (Central Act XVIII of 1850).”
62. The mere fact that a statutory authority is
empowered to follow the procedure as nearly may be in
accordance with procedure under C.P.C. to the trial of
suits or hearing of appeals, the statutory authority shall
not become a Court. There is nothing under Section
110 which indicates that Limitation Act is also made
applicable in hearing of the appeal.
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W.P.No.891 of 2015
63. Section 115 deals with limitation. It only provides
that in computing the period of limitation prescribed
under Act, 1959 for any proceeding, suit, appeal or
application for revision against any order or decree
passed under this Act, the time requisite for obtaining a
certified copy of such Order or Decree shall be excluded.
64. The provision of Section 69 of Act, 1959 also
indicates that Legislature never contemplated
applicability of Section 5 of the Limitation Act in
proceedings before Commissioner. Section 69(2) noted
above provides that any Order passed by the Joint
Commissioner or the Deputy Commissioner, as the case
may, in respect of which no appeal has been preferred
within the period specified in sub-section (1) may be
revised by the Commissioner suo motu and the
Commissioner may call for and examine the records of
the proceedings to satisfy himself as to the regularity of
such proceedings or the correctness, legality or
propriety of any decision or Order passed by the Joint
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W.P.No.891 of 2015
Commissioner or the Deputy Commissioner, as the case
may be.
65. Thus, Section 69(2) gives suo motu power to the
Commissioner to call for and examine the records of the
proceedings of Joint Commissioner or the Deputy
Commissioner in respect of which no appeal has been
preferred within the period specified in sub-section (1).
Thus, in a case appeal is not filed within 60 days against
the order of Joint Commissioner or the Deputy
Commissioner, the Commissioner is vested with suo
motu power to call for and examine the records. The
suo motu power has been given to the Commissioner to
correct the Orders of Joint Commissioner or the Deputy
Commissioner, even if no appeal has been filed within
60 days. Giving of suo motu power to the Commissioner
is with object to ensure that an order passed by the
Joint Commissioner or the Deputy Commissioner may be
corrected when appeal is not filed within time
under Section 69(1). The scheme of Section 69 especially
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W.P.No.891 of 2015
sub-section (2) also re-enforces our conclusion that
Legislature never contemplated applicability of Section
5 in Section 69(1) for condoning the delay in filing an
appeal by applying Section 5 of the Limitation Act.
66. Learned counsel for the respondent has referred to
two Rules framed under Section 116 of 1959, Act,
namely, the Application and Appeal Rules dated
30.08.1961 and the Holding of Inquiries Rules dated
30.08.1961. The Application and Appeal Rules provide
for procedures and details of filing Application,
Affidavits, Memorandum of Appeal, Application for
Revision, etc. The said Rules, in no manner, support the
contention of the learned counsel for the respondent
that Section 5 of the Limitation Act is applicable.
Similarly, Holding of Inquiries Rules provide for
procedure of holding of inquiries, issue of notice, etc.
The above Rules also do not throw any light on the
applicability of Section 5 of the Limitation Act.
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W.P.No.891 of 2015
67. The above provision clearly indicates that provision for
only computation of limitation has been made applicable to
the proceedings under Act, 1959. Section 115 cannot be read
in a manner as to providing applicability of Section 5. There is
no other provision in the scheme from which it can be
inferred that Act, 1959 intended applicability of Section 5 of
the Limitation Act to proceedings of Appeal before the
Commission. We, thus, conclude that Section 5 of the
Limitation Act is not applicable as per the scheme of Act,
1959.”
5. It is clear from the above that the first respondent is
not vested with the power to condone the delay and the
law has been settled by the Hon'ble Supreme Court.
Therefore, the first respondent was perfectly right in
refusing to entertain the appeal filed by the petitioner.
6. The above judgement squarely applies to the facts of the
present case and the 1st respondent is not vested with the power to
condone the delay in filing the appeal and hence, there is no ground
to interfere with the order passed by the 1st respondent.
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W.P.No.891 of 2015
7. In the result, this writ petition is dismissed. No costs.
23.06.2022
Internet: Yes/No
Index: Yes/No
rka
To
1 The Commissioner,
H.r. & C.E. (Admn.) Department,
Having its Office at Nungambakkam High Road,
Chennai-600 034.
2 The Joint Commissioner,
H.R. & C.E.(Admn) Department,
Kotaimaraiamman Temple Complex, Salem.
N.ANAND VENKATESH,J.,
rka
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W.P.No.891 of 2015
W.P.No.891 of 2015
23.06.2022
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