Madras High Court
S.Sarveshwaran Achari vs The State Of Tamil Nadu on 23 September, 2022
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
1/16
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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W.P.No.25803 of 2022
and W.M.P.Nos.24861 & 24862 of 2022
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.
https://www.mhc.tn.gov.in/judis
W.P.No.25803 of 2022
and W.M.P.Nos.24861 & 24862 of 2022
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
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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 ;
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W.P.No.25803 of 2022
and W.M.P.Nos.24861 & 24862 of 2022
(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.
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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)—
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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
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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.
https://www.mhc.tn.gov.in/judis
W.P.No.25803 of 2022
and W.M.P.Nos.24861 & 24862 of 2022
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.
https://www.mhc.tn.gov.in/judis
W.P.No.25803 of 2022
and W.M.P.Nos.24861 & 24862 of 2022
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
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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.
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W.P.No.25803 of 2022
and W.M.P.Nos.24861 & 24862 of 2022
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
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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
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.
https://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
https://www.mhc.tn.gov.in/judis
