Madras High Court
A.Venkatesh Kumar vs The Commissioner on 28 December, 2023
Author: S.Srimathy
Bench: S.Srimathy
W.P.(MD).No.19081 of 2023 & 16453 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 20.12.2023
PRONOUNCED ON : 28.12.2023
CORAM
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
W.P.(MD).Nos.19081 of 2023 & 16453 of 2017
W.P.(MD).No.19081 of 2023
A.Venkatesh Kumar ... Petitioner
Vs.
1.The Commissioner,
Hindu Religious and Charitable
Endowment Department,
No.19, Uthamar Gandhi Salai,
Nungambakkam, Chennai-600 034.
2.The Joint Commissioner,
Hindu Religious & Charitable
Endowment Department,
Madurai District,
Madurai. ... Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India,
praying this Court to issue a Writ of Mandamus, to direct the 2nd respondent to
consider the applications filed by the petitioner as per the notification issued by
the 2nd respondent in Na.Ka.No.6285/2022 dated 08.08.2022 to appoint three
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persons as Non-Hereditary Trustees for the Puttu Urchava Kattalai,
Puttuthoppu, Madurai, from among the representatives of petitioner's
community of Vanniyar Vysya community and to direct the 2nd respondent to
appoint the petitioner as Non-Hereditary trustee so as to facilitate performance
of Puttu Thiruvizha by the petitioner's community.
For Petitioner : Mr.S.Madhavan
For Respondents : Mr.S.P.Maharajan,
Special Government Pleader
W.P.(MD).No.16453 of 2017
S.Nagaraj ... Petitioner
Vs.
1.The Joint Commissioner,
Hindu Religious and Charitable
Endowment Department,
Madurai-625 001.
2.The Joint Commissioner/
Executive Officer,
Arulmighu Meenakshi Sundareswarar
Temple,
Madurai-625 001.
3.The Fit Person,
Arulmighu Puttu Urchava
Vagaiarah Kattali, @ Executive Officer,
Arulmigu Madanagopal Swamy Temple,
Madurai.
4.E.Manickam
5.M.Janakaran
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6.S.Saravana Muthu
7.S.Balasubramanian
8.R.Chandrasekaran
9.I.Sekaran
10.V.Thillai Chidambaram
11.S.Shanmugavelu
12.G.Krishnan Chettiar
13.N.Saravana Kumar
14.A.Shankar
15.S.Palani ... Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India,
praying this Court to issue a Writ of Certiorari, to call for the records of the
impugned order in O.A.No.11/2000 dated 10.03.2017 and the consequential
order in O.A.No.11/2000 dated 19.06.2017 passed by the 1st respondent and
quash the same as illegal.
For Petitioner : Mr.M.Kannan
For R-1 : Mr.S.P.Maharajan,
Special Government Pleader
For R-2 : Mr.V.R.Shanmuganathan
For R-3 to R-6 : Mr.M.Saravanan
For R-7, 9, 10, 12 & 13 : Mr.S.Manickam
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COMMON ORDER
This Writ Petition in W.P.(MD)No.16453 of 2017 is filed by
S.Nagaraj for Writ of Certiorari, to quash the impugned order in O.A.No.11 of
2000 dated 10.03.2017 and the consequential order in O.A.No.11 of 2000 dated
19.06.2017 passed by the first respondent. The impugned order dated
10.03.2017 is a draft modified scheme and the impugned order dated
19.06.2017 is a final scheme.
2. The brief facts of the case as stated in the affidavit are that the
petitioner is a member of the Vaniya Vysya Community in Madurai, Madurai
North Chellathamman Kovil Street, North Simmakkal, Sholavandan, Thenkarai
and surrounding 18 villages. The petitioner is belonging to the “Arulmighu
Puttu Urchava Vagayara Kattalai Puttu Thoppu”, Madurai. The property
'Puttuthoppu' belonging to the above said Kattalai was purchased and
administered by the committee formed by the denomination of the Vaniya Vysya
Community people. The HR & CE Department has got a supervisory power i.e.
to appoint trustees and to verify accounts but cannot interfere in the
management and administration of the Kattalai Community Trust (Private)
property purchased from the contribution by the members of the committee i.e.
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from the contribution by the members of the committee i.e. by the said
community people. The trust was administered by a scheme framed in O.A.No.
53/1939. When dispute arose in administering the Kattalai, the Madras High
Court vide its order dated 23.10.1942 in A.S.No.181 of 1941 had held that “the
management and administration of the Religious Charity namely
1. Puttu Chockanathar Temple and Puttu Festival Endowment
2.Sivarathiri Arai Kattalai in Sri Meenakshi Temple, Madurai
3. The tenth day festival Kattalai in Chellathamman Temple attached to
Sri Meenakshi Devasthanam, Madurai
4. Daily Puja service of Sri Vinayakar Temple in Chellathamman Street,
Madurai and their endowment
shall vest in three trustees who shall be appointed by the Madras Hindu
Religious Endowment Board from among the members of the Vania Vysia
Community in accordance with the judgement of the High Court in Appeal No.
181 of 1941”. The High Court had also held that the HR&CE shall appoint two
of them from larger faction and the third faction shall be appointed from smaller
faction and the Board will have the power of appointing one of three persons as
Managing Trustee as provided for. Based on the scheme the Kattali was
administered for the past 72 years. It is the usual practice that the community
meeting will be held and the trustees will be selected on behalf of the
community and the names will be sent to the first respondent for appointment of
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the three trustees and from the said three trustees, the 1st respondent would
select the managing trustee. To substantiate one such appointment order which
was issued on 18.03.2001 is produced as evidence. The contention of the
petitioner is that the 1st respondent has always been trying to take over the
management of “Puttu Urchava Vagayara Kattalai” belonging to the minority
community which is the denomination community. All the earlier attempts had
been set aside by the High Court and every time the members of the community
had to approach this Court to safeguard their constitutional right. The first
respondent in the year 2000 tried to appoint an Executive Officer of
Dhandayuthapani Temple, Madurai as a “Fit Person” thereby defeating the
community’s right of administration, which was challenged in W.P.No.6905 of
2000 and this court, vide order dated 16.10.2000, held that election to the office
of the trustees has to be held and after the election the administration should be
handed over to the elected trustees. Since the first respondent did not implement
the order, Cont.Pet.No.88 of 2001 was filed and notice was issued to the first
respondent on 21.02.2001. On receipt of such statutory notice, the first
respondent immediately constituted Trust Board from the elected members from
the Vania Vysya Uravinmurai on 18.03.2001. Since the Contempt Application
was filed against the first respondent, the respondents developed animosity
against the petitioner and the community people. The petitioner is protected by
a scheme decree in O.A.No.53 of 1939 as upheld in A.S.No.181 of 1941 by this
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Court, but the respondent intended to water down the said scheme. Therefore,
the first respondent initiated a Suo Moto proceedings under section 64 of the
Tamil Nadu Hindu Religious & Charitable Endowment Act in O.A.No.11 of
2000. The community members vehemently opposed the appointment of any
“Executive Officer” or “Fit Person”. The community people had claimed that
the Kattalai is a denominational one and various persons of the petitioner's
community got impleaded in the O.A.No.11 of 2000 and filed their detailed
objections. The first respondent kept the proceedings in O.A.No.11 of 2000 in
Cold Storage and virtually abandoned the proceedings till the year 2017.
Pending the said O.A., the first respondent once again tried to appoint an
Executive Officer under section 45(1) of the HR&CE Act on 20.08.2003, which
was challenged in W.P.No.9824 of 2004 and obtained stay, thereby the first
respondent failed in their attempt to appoint a fit person and take over the
management. The fourth respondent was selected as the Managing Trustee of
the Kattalai for a period of 2004 to 2007. Once again, the fourth respondent and
the other trustees were selected for a period 4.10.2007 and 3.10.2010. The 1st
respondent by its proceedings dated 19.11.2007 had held that the tenure of non-
hereditary trustee is only one year. Further the 4th respondent had challenged the
Amended Act 15 of 2006 in W.P.(MD)No.2501 of 1008 and W.P.(MD)No.10796
of 2008. The 1st respondent vide, proceedings dated 03.02.2009 called for
application for appointment of non-hereditary trustees for the fresh period and
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the said proceeding was challenged by the 4th respondent in W.P.(MD)No.1728
of 2009. The 4th respondent by filing the above said writ petitions continued in
the office as Managing Trustee till 2011, even though his period was over in the
year 2009 itself. The first respondent also did not take any steps to contest the
above said Writ Petitions and allowed the fourth respondent to continue in
office. Therefore, certain members of the petitioner's community filed
impleading applications. Ultimately, on 17.02.2011, this Court dismissed all the
above Writ Petitions and directed the first respondent herein to take steps for
appointment of fresh non-hereditary trustees. Earlier when the 4th respondent
wanted to become trustee, he consulted the community members and all
consented to appoint him as Managing Trustee with a hope he would act in the
interest of the community. But later the community understood the design
behind the 1st respondent repeatedly selecting the 4th respondent, who would act
as per the dictum of the 1st respondent and against the interest of the community.
Even in the election, which was conducted pursuant to the orders of this Court,
the 1st respondent indirectly tried to select the fourth respondent as a Managing
Trustee by not giving wide publicity for the fresh election. Once again, the
community members were constrained to approach this Court by filing W.P.
(MD)No.5633 of 2011 which was allowed vide order dated 13.02.2012 by
quashing the impugned notification dated 28.02.2011 and directed to issue fresh
notification and complete the election within three months. The first respondent
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vide, proceedings dated 11.03.2012 called for fresh application for appointment
of trustees. Thereafter, the meeting was held under the President, Secretary and
Special Observers and elected three persons on behalf of the Uravinmurai and
sent the names to the 1st respondent. On the other hand, the first respondent
having failed in the attempts to take over the administration, with evil intention
had obtained a letter of undertaking dated 01.05.2011 from the 2nd respondent,
Joint Commissioner for appointment of Executive Officer, who had consented
for appointment of Executive Officer if he is selected as Managing Director.
Thus the 1st and 4th respondent had entered into such illegal agreement to defect
the rights of the denomination community. Inspite of vehement objection by the
Uravinmurai Members, the 1st respondent appointed the 4th respondent as
Managing Trustee. Therefore, the members of the community requested the first
respondent to conduct an election in transparent manner. But the first
respondent on 10.10.2014 rejected the proposal saying that there is no provision
in the scheme for conducting election. Hence, the petitioner had filed W.P.
(MD)No. 17258 of 2014 to direct the 1st respondent to conduct election among
the 18 villages Vaniya Vysya Uravinmurai and select parties for the Puttu
Urchava Vagayara Kattalai in a free and fair mannet and the said writ petition is
pending. Pending writ petition the 1st respondent did not appoint proper officer
bearers. When there is no elected Trust Board as stated in the scheme, the 1st
respondent had completely thrown all the provisions of law to the wind and
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interfered in the administration as per their whims and fancies. In the
meanwhile, the first respondent has taken the Suo Motu O.A.No.11 of 2000
from cold storage after 17 years. The 1st respondent having successfully evaded
from bringing into existence a lawful Board of Trustees has passed the
impugned orders dated 10.03.2017, illegally framing a modified draft scheme.
The impugned order was passed without following any procedure prescribed
under section 65(5) read with the Framing of Scheme Rules. Following the draft
scheme order dated 10.03.2017, the subsequent impugned order dated
19.06.2017 was passed confirming the scheme. Challenging the same, the
present Writ petition is filed raising various grounds.
3. Pending writ petition, one A.Venkatesh Kumar had filed writ
petition in W.P.(MD)No.19081 of 2023 inter alia praying for Mandamus to
consider the application of the petitioner as per the notification issued by the 2nd
respondent in Na.Ka.No.6285/2022 dated 08.08.2022 to appoint three persons
as Non-Hereditary Trustees for the Puttu Urchava Kattalai from among the
Vanniyar Vasya Community and to direct the 2nd respondent to appoint the
petitioner as Non-Hereditary Trustee. The contention of the said A.Venkatesh
Kumar is that the community represented by S.Nagaraj had filed W.P.(MD)No.
16453 of 2017, in which the order dated 19.06.2017 passed in Suo Moto
O.A.No.11 of 2000 was challenged and there is an interim order of status quo.
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Another writ petition in W.P.(MD)No.16802 of 2019 was filed for appointment
of Non-Hereditary Trustees and as per the direction of the Court three persons
were appointed on 19.08.2020 for a period of two years. Now the said period is
over and fresh applications has been filed and the same was not considered. In
the meanwhile, the department has changed the nature of scheme by usurping
the entire rights of the Vanniyar Vysya community mentioning that an Executive
Officer can be appointed by invoking section 45(1) thereby the entire powers
would be granted to Executive Officer and the Trustees would be mere titular
head. On 08.08.2022 a notification in Na.Ka.No.6285/2022 was issued calling
for the appointment of trustees. The contention of the petitioner is that the
petitioner had applied for the along with the necessary documents. Likewise,
several persons had applied for based on the said notification, but the same was
not considered by the respondents. Further the respondent had appointed Fit
Person for interim administration, which the respondents wanted to continue so
as to hold the administration. The respondents are adopting the method of
inaction to continue in the administration. Hence the petitioner A.Venkatesh
Kumar had filed the present writ petition to appoint non hereditary trustees by
considering the applications filed by several persons.
4. The 3rd respondent, Fit Person had filed counter wherein it is
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stated that the petition is not maintainable since the impugned notice dated
10.03.2017 is only a notice issued under section 64(5) of HR&CE Act inviting
objections for the modified draft scheme. The petitioner in his affidavit has
admitted that Vaniya Vaysya Community people had sent objections for the draft
scheme. Hence the present writ petition challenging the notice is not
maintainable. Further the impugned order dated 19.06.2017 framing modified
scheme under section 64(5) of HR&CE Act is an appealable order under section
69 and any person aggrieved can file an appeal to the Commissioner HR&CE
within 60 days. Hence the present petition filed without exhausting the statutory
remedy is liable to be dismissed in limine. The Puttu Utsava Kattlai is a
religious endowment and the income from the properties is used for the
religious charities, especially the performance of Pattu Utsava Mandagapadi at
the Aavani Moola festival of Sri Meenakshi Sundareswarar Thirukovil. For the
administration of the Kattalai, a scheme was framed and the same was settled by
the Hon’ble High Court in A.S. No.181 of 1941 and as per Clause (2) of the
scheme, the HR&CE Department has to appoint three trustees from Vaniya
Vaysya Community people and the Department has been appointing trustees for
more than 80 years. The Joint Commissioner or the authorised authorities
appointed from time to time will publish notification calling for application
from among the community people and appoint trustees. After the enactment of
HR&CE Act, 1959 (Act 22/1959), the power to settle scheme vests with the
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W.P.(MD).No.19081 of 2023 & 16453 of 2017
HR&CE Department and as per section 64 the Joint Commissioner is having
power to settle schemes. Further the provisions of the Act will prevail over the
scheme already settled by the authorities and Courts. Section 118(2)(1)(b) of the
Act, declares that any scheme repugnant to the Act will become void. The Joint
Commissioner / Deputy Commissioner is appointing trustee by inviting
applications. The contention raised by the petitioner that the community people
alone are entitled to elect the trustees is baseless, imaginary and impracticable.
The petitioner is a close relative of one I. Sekaran, a former trustee, against
whom a criminal case of misappropriation of Kattalai fund is pending. It seems
that the present petitioner is set up by I. Sekaran to stall the process of
appointing trustees. In earlier occasion when the first respondent issued a
notification calling for application for appointment of trustees challenging the
same the petitioner herein had filed W.P.(MD)No.17258 of 2014, raising the
contentions raised in the present writ petition and the same was dismissed on
28.04.2022, The object of the petitioner in filing the above petition is to stall the
selection process of the post of trustees. Under HR&CE Act, if the 1st
respondent has reason to believe that in the interest of proper administration of
an institution a scheme should be settled, he can frame / modify the scheme. In
exercise of the power conferred under section 64(5) the 1st respondent has
modified the earliest scheme by following the procedures under section 64 and
framing of schemes rules. The contra allegations in the affidavit are stoutly
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W.P.(MD).No.19081 of 2023 & 16453 of 2017
denied as false and the petitioner is liable to prove the same. The contention of
the petitioner of the third respondent is a denominational trust that they were
not given opportunity while framing scheme, that the procedure under the
Framing of Scheme Rules were not followed are denied as false. The scheme
was framed by following procedures contained in the act and as well as the
rules. The contention of the petitioner that the trustees were elected by the
community members by conducting a meeting is totally denied as false. Even as
per scheme the power to appoint trustee is vest with the Board and hence the
question of electing trustees by the community members does not arise. Hence
the writ petition is devoid of merits and liable to be dismissed.
5. The seventh respondent namely S.Balasubramanian had filed
separate elaborate counter, which gives the glimpse of the Puttu Utsav and the
background of the litigation. It is stated that the members of the Arulmigu Puttu
Urchva Vagaiyara Kattalai belongs to Vaniya Vysya Ayira Thalaivars
Denomination residing in Madurai, Madurai North Simmakkal Street, North
Chellathamman Kovil Street, Shoavandan Vagaiyarah and surrounging 18
village of Madurai District namely Madurai, Sholavandan, Mullipallam,
Thenkarai, Mannadimangalam, Kuruvithurai, Irumbadi, Vadipatti,
Thathampatti, Katchakatti, Andipatti (Madurai District), Vadugapatti,
Kondaiyampatti, Ayyankottai, Thanichiyam, Thiruvedagam, Melakkal, Thenur.
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Hence the members of the said denomination are well defined and identifiable
sect, having common faith, common organisation and designation of a
distinctive name having traditional vocation of production of oil in the country,
owing oil mills and also trading in other commodities. It is a religious belief of
denomination that one Vanthiammai was an ancestor of the denomination, who
played the main role in Pattu Thiruvilaiyadal, which is one among the 64
Thiruvilaiyadals enacted by Lord Shiva at Madurai in the Pandian Kingdom.
Among the 63 Saivaite Saints of South India (Nayanmars) there lived a
Nayanmar by name Kaliyanayanar belonging to the same denomination doing
the oil trade in Oil Monger Streets. The said Kaliyanayanar used to spend all his
money through oil trade for lighting lamp in seven temples, when he lost all his
money, he got employed in oil Mill and even thereafter when he did not have
money, he ultimately decided to let the lamp with his blood and wanted to sever
his head and ultimately got interrupted by the Lord Shiva himself. This is a
peculiar faith of the denomination and the said Kaliyanayanar is revered,
worshipped as one of their ancestors and had installed a deity of Kaliyanayanar
in the Puttu Chokkanathar Temple constructed by Arulmigu Pattu Urchava
Vagaiyara Kattai. Further within the temple, there is a Samdhi of one Mariappa
Chettiar, who is the founder of the Kattalai. Since time immemorial the said
denomination is celebrating the Thiruvilaiyadal of Puttu Chokkanathar in the
banks of river Vaigai. To improve the denomination, properties were purchased
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in Madurai Town S.No.V, Block No.72, Old T.S.No.1187/1, 1187/2, New T.S.
No.49 extent 4 Acres 84 cents, Patta No.995 by a registered sale dated
16.10.1889, on behalf of Vaniya Vysya Kula Ayarathars for conducting the
Madurai Sri Meenakshi Sundareswarar Puttu festival. On 01.08.1892, a meeting
of the Vaniya Vysya Chettiar denomination met and executed a document
whereby the executives agreed to pay Mahamai collections for celebrating the
above festival and also for construction of Mandapam to the founder. Another
meeting was held on 07.06.1895 as there was a requirement for more money for
completing the Stone Mandabam and for celebrating the Sri Meenakshi
Sundareswarar Avani Moola Puttu Thiruvaizha Yagam in the Thoppu, additional
construction of pillars and platforms and among other purpose and it was agreed
by the members for payment of Mahamai. Again the committee members met on
18.08.1906 for revising the rate of Mahamai for performance of four charities as
stated supra. It is a popular belief that the Chellathamman Temple situated at
Simakkal originally it is a Kannaki Temple established in memory of Kannaki
of Silapathikaram Epic and the main characters in Silapathikaram namely,
Kannaki and Kovalan belong to Vaniya Vysya Community and they were oil
merchants. It is the belief that Kannaki later on referred as Chellathamman,
hence the 10th day Mandagapadi is celebrated in the Chellathamman Temple by
the denomination and there is a separate sanadhi for Kannaki. Hence the
peculiar belief and faith of the community residing in the 18 villages constitute
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a denomination and it is protected with a special rights guaranteed under article
26 of the Constitution of India. The denomination has a separate Guru by name
Brahma Sri Sri Venkata Subramanniya Baskara Prouda Gnana Sivachariyanam
Swamy. The erstwhile HR&CE Board had framed a scheme in O.A.No.53 of
1939, which was challenged in O.S.No.53 of 1939 on the file of District Court,
Madurai and the same was allowed. The Department preferred appeal in
A.S.No.181 of 1941 on the file of High Court and as per the decision only
supervisory jurisdiction was granted to the department. It was specifically held
that the Trustees appointed from the denomination should govern the Trust.
Three trustees are selected from the denomination and from them one of them
will be appointed as managing trustee by the Board. With the enactment of
Constitution of India the rights and privileges enjoyed by the denomination was
enlarged and now the denomination enjoys an absolute right in the
administration and management of properties of the trust. The properties of the
trust belong to the trust and none of the properties is vested with any deity.
From time immemorial the Vaniya Vysya denomination had spiritual
organisation and were conducting the Puttu festival. The property belonging to
the trust was occurred for the welfare of the denomination to celebrate the
festival for the spiritual welfare under the earnest effort of the elders of the
denomination, especially by the said Mariappa Chettiar, who is the founder of
Kattalai. The management of the properties always belonging to the
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denomination and the trust has been collecting the rent and other incomes
accruing to the trust. All the litigations for and against the turst properties were
conducted only in the name of trust. The properties were leased out by the
managing trustee of the trust. In Uravinmurai consisting of members of the
denomination would select three persons as trustee and send the name to the
Joint Commissioner and one among them will be managing trustee.
6. Every year the Avvai Mulla festival in the Puttu thoppu the first
honour is given to the Sholavandan Maniakarar of the denominational
denomination. The second honour to the Madurai Maniakarar of
denominational denomination, the third honour to the Sholavandan Nattanmai,
the fourth honour to Katchaikatti Nattanmai and thereafter to the other
Uravinmurai members. The first honour is given to the above members by the
Managing Trustee of the Trust. During the festival the Puttu is given as
Prasadam and the same is free of cost. The temple situated in Pattu Thoppu was
constructed by the Trust after the purchase in the year 1889, the temple is
exclusively administered by the trust. The employees in the temple are only
appointed by the trust and the salary is paid by the trust. No fund whatsoever is
collected by the trust from the public for administration of the temple, no
hundial was installed by the trust in the temple, but with male intention to take
over the management the Board installed hundial in the year 2000. Immediately
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an objection was made on behalf of the denomination to remove the Hundial on
23.07.2000. Thereafter the management of the trust has been in the hands of 4th
respondent who is acting in favour of 1st respondent and against the interest of
the denomination, therefore no action has been taken thereafter. The
administration of the trust was going very smooth, but from 1990 the
department started their effort to take over the complete administration of the
Trust. With that intention they repeatedly kept appointing Thakkar and
Executive Officer of the Department. The denomination members have been
thwarting all such attempts by filing writ petitions. The appointment of Thakkar
was successfully challenged in W.P.No.3710/1990 and the department itself
cancelled the proceeding by its proceeding dated 30.12.1991 and appointed
Thakkar belonging to the denomination. Since the denomination challenge, the
appointment of non-denomination members, the Department by proceedings
dated 16.11.1992 appointed proper trustees belonging to the denomination. The
effort of the Department to take over the management of the trust did not stop
and the Joint Commissioner framed charges against the Trustees namely
S.Balasubramanian (the 9th respondent herein), Karuppaiah and
R.Chandrasekaran and a criminal case in C.C.No.329 of 2000 on the file of IV
Judicial Magistrate, Madurai was registered and the same ended in acquittal on
11.08.2005. After suspending the above Trust Board the first respondent vide
proceeding dated 20.03.2000 appointed the Executive Officer, Madurai
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Arulmigu Dhandayuthapani, Thirukovil as Fit Person. Again the same was
challenged in W.P.No.6905 and W.P.No.13813 of 2000 in which the department
admitted that fresh elections will be held and the denomination members would
be appointed, recording the set submission the petition was allowed vide order
dated 16.10.2000, but no appointment was made as per the undertaking. Hence
a contempt petition was filed, thereafter the respondent appointed trustees vide
proceedings dated 18.03.2001 and was produced before the court thereafter
contempt was closed. In that order three persons belonging to the denomination
has been appointed as trustee as per the resolution of the Uravinmurai. But the
department taking advantage of appointment of executive officer in the year
2000 immediately installed hundial with an intention to take over the temple
belonging to the trust. Immediately objections was submitted against the act of
encroachment into the powers of denomination. In fact during the
administration of Executive Officer, even the name of the trust disclosing the
denomination community was scrapped and it was displayed as if it was under
the administration of HR&CE Department. Only after the High Court set aside
the appointment of Executive Officer, the name of the denomination was
restored. Once again, the first respondent attempted to interfere in the
administration of the trust vide the proceedings dated 20.08.2003 appointed an
Executive Officer belonging to the Temple to work jointly with the trustees of
the Kattalai. Challenging the same W.P.No.9824 of 2004 was filed by one
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C.Pitchumani Chettiar and the appointment was stayed by the Court. Hence all
the attempts by the Department to take over the administration by appointing
Executive Officer belonging to the Department has been successfully resisted
by the community. As a continuation of an of the attempt the first respondent
had invoked the powers under Section 64(5)(a)and(b) of HR&CE Act, 1959
issued notice dated 29.12.2000 in Suo Motu O.A.No.11 of 2000 for
modification of the scheme and thereby take over the entire administration of
the denomination. The rights of the denomination in the administration of the
Trust is much larger than the was guaranteed under earlier scheme after the
enactment of the Constitution of India under Article 26. The department was
also aware of its limits within which it can interfere in the administration of the
denomination. The trust also felt that the limited powers of supervision of the
trust properties given to the department acceptable as long as the department
respected the autonomy and rights of the denomination it was only for that
reason, the denomination did not choose to seek a declaration and enforcement
of its rights. The department was also staying within its limits as prescribed
under article 26 for the past 50 years. Whereas from 2000 the intention of the
Department had changed and now it is bent upon usurping the property of the
denominational trust. With this intention the notice in O.A.No.11/2000 was
issued and the community submitted their strong objections to the notice. Since
the Department was facing strong strictures and contempt notices from the High
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Court regarding the trust properties, the department dropped all further
proceedings in O.A.No.11/2000 and nothing further was heard about it for the
past 17 years. Having failed in all their attempts to take over the administration
through legal means, the department started to indulge in malafide and
surreptitious methods. With that intention the department selected the 4th
respondent as Managing Trustee in the year 2004 and he has been repeatedly
selected as managing trustee in the year 2007. Having got an appointment in the
year 2007, the fourth respondent filed writ petitions in W.P.No.2501/2008,
W.P.No.10796/2008 and W.P.No.1728/ 2009 seeking extension of his period of
Trusteeship and the department did not take steps to dispose the petitions.
Therefore, the community impleaded themselves and contested the case, then all
the writ petitions were dismissed vide order dated 17.02.2011. Even thereafter
the same person was temporarily appointed as Thakkar and attempts were being
made to conduct elections secretly without giving opportunity to all the
denomination members. Again W.P.No.5633 of 2011 was filed and vide order
dated 13.02.2012 the 1st respondent was directed to give wide publicity before
conducting elections. Even thereafter the elections were held in an improper
manner and the 4th respondent was once again selected as managing trustee.
Thereafter the denominational sent notice dated 3.10.2013 under section 80 of
CPC to the first respondent to stop their attempt to take over the denomination
trust, failing which would file a civil suit. Even thereafter the respondents 1 to 3
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did not stop their attempt to take over the administration of the trust. The other
members of the denomination were not given opportunity even in the present
selection of trustees. Once again by an order dated 6.08.2012 the 4th respondent
has been appointed as managing trustee and it is unknown how the same person
has been selected. Infact it was brought to the knowledge of the misdeeds
committed by the fourth respondent. Criminal cases have been registered
against the fourth respondent for theft of Kalasam and falsification of Trust
accounts. In spite of the same the 4th respondent was selected as managing
trustee. During the enquiry conducted by the 1st respondent on 16.10.2012, the
1st respondent openly stated that the fourth respondent has executed an
undertaking letter dated 01.05.2012 by which he has given an undertaking that
in the event of his being appointed as managing trustee, he would pass a
resolution for appointment of Executive Officer by the Department. Only then
the community came to understand that the Department has used the 4th
respondent as a ruse to take over the management of the trust. Immediately after
the appointment of fourth respondent as a managing trustee by an order dated
06.08.2012, the department has issued a new Archanai ticket with the seal of the
department as if the temple belongs to the department. This is the 1st time that
Archanai ticket has been issued, which is a blatant interference in the
administration of the denominational Kattalai by the department with the help
of the fourth respondent. All communications on behalf of the trust has been
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changed from the managing trustee to that of the Chairman Board of Trust. This
is also a clear encroachment into the denomination and against the scheme
upheld by the High Court. Behind the screen the department was pulling the
stings, to take over the management. The Department which has been given
only an inch is asking ell and trying to take over the entire administration of the
denominational trust. The first respondent repeated attempts to take over the
administration and the community’s repeated orders against them for removal of
the managing trustee, who was inimical to the interest of the trust, once again
has racked up and reopened the Suo Motu O.A.No.11 of 2000. The first
respondent has openly stated that only because the trust was having the
protection of previous orders passed by the Hon’ble Court and the existence of
scheme framing the appointment of trustee from the denomination, the trustee
were not allowing the Department to take over the trust. The first respondent
without following the mandatory procedures prescribed under the Act and Rules
has passed impugned orders thereby violated the rights of the denomination.
The first respondent has by the impounded orders completely obliterated the
century old right of the denomination in administering its own properties and it
is a clear violation of the right guaranteed under article 26 of the Constitution.
The first respondent has not proved any of the allegations stated in the O.A.No.
11/2000. By modification of the scheme virtually the entire rights of the
denomination has been taken away. The trustee to be appointed from the
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denomination has been delegated to insignificance and the entire management
of the administration including the day-to-day administration of the temple etc.
have been handed over to the Executive Officer without any reason whatsoever.
The denominational property was purchased and administered by the members
of their own community and now by appointing the Executive Officer with
arbitrary and excessive power amounts to unlawful interference into the rights
of the denominational community and right to administer their own property
guaranteed under article 26 was taken away by the impugned order. In
substance, the trustee have been relegated to the position of mere servants and
the Executive Officer has been put in charge of the entire management of the
Trust. Nothing can be done in the temple without Executive Officer permission.
It is not even the Executive Officer functions under the supervision of the
Trustee. The Department which was only having a supervisory role has now in
gross denial of the right to property of the denominational trust has completely
taken over the management of the denominational trust and made the
denominational trustees as namesake persons. The respondents 1 to 3 here in
without making out any case for appointment of Executive Officer who
practically displaces the trustee has acted in violation of the law laid down by
the constitutional bench of the honourable Supreme Court of India in Sri La Sri
Subramanya Desiga Gnanasambada Pandara Sannadhi Vs. State of Madras
reported in AIR 1965 SC 1683. The first respondent has passed orders without
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recording any reasons whatsoever and has merely reproduced the words
contained in Section 64(5) and that is clear violation of the statue. The 1st
respondent having failed to substantiate the impeded orders by giving reasons in
the impugned orders itself, cannot file counter to improve the impugned order.
The first respondent has to stand or fall by the contents of the impugned orders
alone and cannot level unfounded and unsubstantiated allegations in the writ
petition. The first respondent has not proved the allegations levelled against the
office bearers and the members of the denomination and has not made out any
case for modifying the scheme. If such arbitrary exercise of power is given to
the first respondent then the right and interest of the Hindu denominational
Trust and temples could be erased and written at the whims and fancies of the
officials of the HR&CE Department. The Hon’ble Court has repeatedly been
holding the authorities under the Act should act in accordance with the
procedures prescribed under the Statue. If Law requires a particular thing has to
be done in a particular manner, it cannot be done otherwise. If the procedural
safeguards given under the Constitution and the statues is diluted on unfounded
and unproven allegations, whatsoever the gravity of the charge may be, it will
lead to negation of role of law and it will lead to administration in an
unconstitutional manner. Hence the 7th respondent prayed to allow the writ
petition.
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7. The ninth respondent namely I. Sekaran who had held the post of
Managing Trustee from 2001 to 2004 had filed counter stating that he along
with S. Murugesan, V. Thilli Chithambaram had jointly submitted detailed
written objections with the 1st respondent as early as 26.02.2001, the 1st
respondent without following the statutory period had passed the impugned
orders and they were contemplating to challenge the same. In the meanwhile the
present petitioner had filed the case as a community member and hence in order
to avoid multiplicity of proceedings another petition was not filed. Hence he has
filed the counter and has put forth the few facts for consideration. The first
respondent was aware that they (they indicates I.Sekaran, S. Murugesan and V.
Thilli Chithambaram) have been dule elected as trustees in the Community
General Body Meeting held on 19.11.2000, the minutes of which were
communicated to the first respondent on 11.12.2000, intentionally the first
respondent issued the original Suo Motu notice to the erstwhile trustees, who
ceased to hold office on and from 26.12.2000. Yet being then president and the
Office Bearers of the specific endowment, they had sent the reply dated
26.02.2001 for the Suo Motu notice, wherein they have specifically pleaded that
the provisions of section 64 are not applicable. Further as per the custom
established from time immemorial and also as recognised by the 1 st respondent,
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the administration of the Kattali vests with the particular community namely,
Vaniya Vysya Community people living in a defined area of 18 villages.
Therefore, the specific endowment is denominational in character and the
provisions of the Act are not applicable as it is saved under Article 26 of the
Constitution of India and hence the first respondent has no authority or power to
modify, annual or cancel the existing scheme of management which falls within
the purview of the specific community which is denominational in character.
Since he had filed writ petition to protect the interest of the denomination by
challenging the appointment of Executive Officer in W.P.No.6905 of 2000 and
initiated contempt proceedings in Cont.Pet.No.88 of 2001 and obtain orders.
Hence the first respondent has deliberately and intentionally levelled false
allegation of mismanagement and misappropriation against him. Even though
he had demitted the office in the year 2004 itself, the first respondent has passed
an order dated 24.05.2011 as if the petitioner had committed misappropriation
operation and the criminal action was taken against him. The order dated
24.05.2011 was passed immediately after passing of the order by the Hon’ble
Court in W.P.(MD)No.10796 of 2008 etc. on 17.02.2011 as he was one of the
contesting respondent who got the petition dismissed and obtained order for
conducting election. Every time a member of the community questions the
authority of the first respondent such false allegations are brought against them
and similar criminal case was filed against the erstwhile trustee Mr.S.
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Balasubramanian and the same ended in acquittal before the competent criminal
court. He had demitted the office in the year 2004 itself, but the 4th respondent
has taken position and charge forcefully by breaking open the bureau
unauthorizedly without any permission and without following the procedures
prescribed under the Act and was been running the office of Managing Trustee.
And after a period of seven years the false criminal case has been levelled
against him. The 7th respondent further submitted he had preferred criminal case
against the fourth respondent regarding the above facts. The respondent 1 to 3
cannot project the case regarding the unproven and unsubstantiated belated
allegations for justifying the impugned orders. Admittedly, such unsubstantiated
allegations are found in the impugned orders. Therefore, the modification of
scheme is clearly unlawful, erroneous and the writ petition ought to be allowed.
Further he had submitted in order to protect the interest of denomination, during
the his tenure as Managing Trustee he had conducted proper survey of the entire
Puttu Thoppu property and all the tenant lists were prepared, tenancy
agreements were executed with enhanced market rate based upon the actual
square feet of occupation by the tenants. Infact he had regulated the tenancies
and had argument the income of the trust. But the fourth respondent has allowed
so many subleasing and unauthorised letting of the trust property and the fourth
respondent with the help of the department is unauthorised receiving money and
the same can be proved if proper Trustees are appointed from the denomination.
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If the accounts and records are verified, then it can be ascertained that the
respondents 1 to 4 have indulged in mismanagement. Hence, the 7th respondent
prayed to allow the writ petition.
8. Heard Mr.S.Madhavan, the Learned Counsel appearing for the
petitioner in W.P.(MD)No.19081 of 2023, Mr.M.Kannan, the Learned Counsel
appearing for the petitioner in W.P.(MD)No.16453 of 2017, Mr.S.P.Maharajan,
the Learned Special Government Pleader appearing for the respondents in W.P.
(MD)No. 19081 of 2023 and for 1st respondent in W.P.(MD)No.16453 of 2017,
Mr.V.R.Shanmuganathan, the Learned Counsel appearing for the 2nd respondent
in W.P.(MD)No.16453 of 2017, Mr.M.Saravanan the Learned Counsel
appearing for the respondents 3 to 6 in W.P.(MD)No.16453 of 2017 and
Mr.S.Manickam, the Learned Counsel appearing for the respondents 7, 9, 10,12
and 13 in W.P.(MD)No.16453 of 2017 and perused the records.
9. The first contention of the petitioner is that the 1st respondent
had initiated the Suo Motu O.A.11 of 2000 for modifying the scheme under
section 64(5) of the HR&CE Act in order to give the entire power of
administration to the Executive Officer. When the scheme was settled in
A.S.No.181 of 1941 and the same is implemented for the past 60 years and the
administration of the endowment is functioning properly, there is no necessity
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W.P.(MD).No.19081 of 2023 & 16453 of 2017
to modify the scheme. But the contention of the respondents 1 to 3 is that the
said scheme was settled prior to Act 22 / 1959, the Section 118(2)(1)(b) of the
Act declares that any scheme repugnant to the Act will become void and the
provisions of the Act will prevail over the scheme already settled by the
Authorities and Courts and for this reason the Suo Motu proceedings was
initiated. After hearing the rival submissions this Court has given its anxious
consideration. Even though the respondents 1 to 3 have taken a stand that the
present scheme which formulated prior to Act 22 of 1959 is repugnant to the
Act 1959, the respondents have not specifically stated which portion of the
scheme is repugnant to the Act 22 of 1959. In the impugned orders also the
respondents 1 to 3 have not stated which clauses of the earlier scheme are
repugnant to the Act 1959. In the counter also the respondents have not stated
which portion is repugnant. Therefore, this Court is of the considered opinion
that if none of the clause is repugnant to the Act 22/1959, then the respondents
are not empowered to change the scheme. Hence the scheme which was
confirmed and settled in A.S.No.181 of 1941 is not repugnant to Act 22/1959
and it is not necessary to change / modify the scheme. And the Suo Motu
O.A.No.11 of 2000 itself is unnecessary, when there are no impending
circumstances for changing the scheme.
10. While passing orders in A.S.No.181 of 1941, the Hon’ble High
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Court has held that the Vaniya Vaysya Community had contributed the money
for conducting festival of
1. Puttu Chockanathar Temple and Puttu Festival Endowment;
2.Sivarathiri Arai Kattalai in Sri Meenakshi Temple, Madurai;
3. The tenth day festival Kattalai in Chellathamman Temple attached to
Sri Meenakshi Devasthanam, Madurai;
4. Daily Puja service of Sri Vinayakar Temple in Chellathamman Street,
Madurai and their endowment.
The excess money was invested in purchasing the property and the properties
were endowed with Trust. But litigations started because of two rival factions
and the trustees were appointed from the smaller faction. After taking all factors
into consideration the scheme was settled with certain modifications. Earlier the
power of appointing the trustees was with the Vaniyar Vysya Community but in
the A.S.No.181 of 1941 it is given to HR&CE Department. The relevant portion
is extracted hereunder:
Clause 2 as per original scheme:
“The management of the specific endowment relating to 1. Puttu
Chockanathar Temple and Puttu Festival Endowment, 2.Sivarathiri
Arai Kattalai in Sri Meenakshi Temple, Madurai, 3. The tenth day
festival Kattalai in Chellathamman Temple attached to Sri
Meenakshi Devasthanam, Madurai and 4. Daily Puja service of Sri
Vinayakar Temple in Chellathamman Street, Madurai and their
endowments shall be administered by three trustees appointed
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among the Vanniar Vaisya Community”
Clause 2 as per A.S.No.181 of 1941
“The management and administration of the religious charitable
relating to 1. Puttu Chockanathar Temple and Puttu Festival
Endowment, 2. Sivarathiri Arai Kattalai in Sri Meenakshi Temple,
Madurai, 3. The tenth day festival Kattalai in Chellathamman
Temple attached to Sri Meenakshi Devasthanam, Madurai and 4.
Daily Puja service of Sri Vinayakar Temple in Chellathamman
Street, Madurai and their endowments shall vest in three trustees
who shall be appointed by the Madras Hindu Religious
Endowments Board from among the Vanniar Vaisya Community
in accordance with the judgment of the High Court in Appeal No.
181 of 1941.”
The only difference is that as per original scheme the three trustees should be
appointed by the community people. But the scheme as per A.S.No.181 of 1941,
the Madras Hindu Religious Endowments Board has to appoint the three
trustees. In the scheme it has been specifically stated that the administration is
only by the Trustees belonging to the Vanniyar Vaisya Community. Therefore,
this Court is of the considered opinion that the Board cannot administer the
Trust, but it is only the Trustees appointed from the Vanniyar Vaisya
Community alone ought to manage and administer the endowment.
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W.P.(MD).No.19081 of 2023 & 16453 of 2017
11. The Learned Counsel appearing for the respondents 1 and 2
submitted that the scheme is not providing any clause to appoint Executive
Officer for administration of the Trust and hence the same is against the Act
1959 and it is for this reason the respondents 1 to 3 sought to modify the
scheme. This plea of the respondents cannot be accepted since the temple and
the endowments ought to be managed by the Trustees only and not by the
HR&CE Department. In fact, the Hon’ble Division Bench of this Court vide
order dated 07.06.2021 in Suo Motu W.P.No.574 of 2015 had held that the
Department should take steps to appoint Hereditary Trustees where ever
Hereditary Trustees are managing the temples and endowments. And appoint
Non-Hereditary Trustees where ever Hereditary Trustees are not available for
proper administration of the temples and endowments. The relevant portion is
extracted hereunder:
“TRUSTEE
(54) The HR&CE Department shall file a report before this Court within
a period of eight (8) weeks listing out the number of temples without
Trustees, the duration of such vacancy, the particulars of the persons
appointed as “Fit Person” and the steps taken by the Department to
appoint trustees.
(55) If no hereditary trustees stake claim, then steps must be taken to
appoint non-hereditary trustees. The non-hereditary trustees must be
from the religious denomination, to which the temple belongs to,
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without the political background.
(56) Stringent rules on the conduct, character, interest and knowledge on
both religious affairs as well as administrative abilities of the trustees,
must be enacted to ensure that the right person is appointed to manage
the religious affairs of the temples.
(57) Keeping in mind that the overall administration shall be with the
HR&CE Department, the authorities shall supervise the affairs of the
religious institutions ensuring that the HR&CE Act is strictly complying
with by the trustees and taking necessary remedial steps for which they
are paid an annual contribution as specified under Section 92”
Further the temple and endowments ought to be managed and administered by
Trustees only. The HR&CE department is empowered to appoint Executive
Officer only if there is mismanagement or allegation of misappropriation. And
once the said allegation is set right then the management ought to be handed
over to the trustees only. The Executive Officer or the Fit Person cannot have
perpetual power to manage and administer the temple or endowments. Further
this power to appoint Executive Officer (when mismanagement or
misappropriation) will not empower the HR&CE Department to replace
Executive Officer in the place of Trustees. More so, it cannot reduce the power
of the Trustees and grant such power to Executive Officer. Moreover, any
appointment of Executive Officer or Fit Person ought to be only for a period of
five years as per the Conditions for Appointment of Executive Officers Rules,
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2015, which was issued in G.O.Ms.No.260 Tourism, Culture and Religious
Endowments (RE4-2) Department dated 06.11.2015 published in gazette on
06.11.2015. The relevant portion of the rule is extracted hereunder:
“The Commissioner may, after holding such inquiry as he may
consider it necessary and expedient, in the interest of such religious
institution, by order, appoint an Executive Officer for such religious
institution, for such period or periods as may be specified by the
Commissioner in the order not exceeding a period of five years at
a time”
When the provisions allow to appoint Executive Officers / Fit Person for a
limited period, then appointing the Executive Officers in the scheme perpetually
would be against the provisions of law. When the appointment of Executive
Officer or Fit Person can be only for a period of five years, then the Executive
Officer or Fit Person cannot replace Trustees or cannot take over the power of
Trustees. Hence the appointment of Executive Officer to replace Trustees is
impermissible as per HR&CE Act. Also, the trustees cannot be placed as
servants to Executive Officer. Therefore, this Court is of the considered opinion
that the modification in the impugned order is against the provisions of law,
specifically against Conditions for Appointment of Executive Officers Rules,
2015 and hence the impugned order is liable to be quashed.
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12. Further in the present case the allegation against the
respondents 1 to 3 is that they are trying to appoint Executive Officer in the
place of Trustee or give less power to Trustees in order to usurp the
administration. This Court is of the considered opinion that the above narration
of facts would prove that the respondents are trying to usurp the administration.
The respondents are acting beyond the provisions of law.
13. The next contention of the respondents 1 to 3 is that the Joint
Commissioner / Deputy Commissioner is appointing trustee by inviting
applications, but the petitioner is contending that the Vaniyar Vsyaya
Community people alone are entitled to elect the trustees is baseless, imaginary
and impracticable. The said contention of the respondent cannot be accepted
since the High Court in A.S.No.181 of 1941 had held that the three trustees
ought to be appointed from the said Vaniyar Vsyaya Community alone. Even in
the judgment rendered in the Suo Motu W.P.No.574 of 2015 the Hon’ble
Division has issued direction under the heading “Trustee” in Clause 55 that the
non-hereditary trustees must be from the religious denomination, to which the
temple belongs to”. Of course, there cannot be any election to select the
trustees. But the 1st respondent ought to appoint the Trustees from the Vaniyar
Vsyaya Community only. As on date even though there is no election in the
scheme, if in future election is necessary the community may go for election as
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well.
14. The next contention of the 3rd respondent is that the petitioner is
a close relative of one I. Sekaran, a former trustee, against whom a criminal case
of misappropriation of Kattalai fund is pending. And the present petitioner is set
up by I. Sekaran to stall the process of appointing trustees. The 3rd respondent
further submitted that in earlier occasion when the first respondent issued a
notification calling for application for appointment of trustees challenging the
same the petitioner herein had filed W.P.(MD)No.17258 of 2014, raising the
same contentions that is raised in the present writ petition and the same was
dismissed on 28.04.2022 and the object of the petitioner in filing the above
petition is to stall the selection process of the post of trustees. On perusing the
order passed in W.P.(MD)No.17258 of 2014, it is seen that the said writ petition
was dismissed since already trustees were appointed for the concerned period
and nothing survives for adjudication. The aforesaid writ petition has not
declared any ratio decidendi and hence the same cannot be relied. As far as the
criminal case is concerned it is stated by the 9 th respondent, Balasubramanian
that the said criminal case had ended in acquittal. Even if the plea of the
respondent that cases are pending is accepted, merely because some cases are
registered against the said I.Sekaran, the petitioner S.Nagaraj cannot be
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W.P.(MD).No.19081 of 2023 & 16453 of 2017
restrained from filing a case or from claiming trusteeship, since the HR&CE Act
recognises the right of a person who are next in line of succession, when the
existing trustees are facing disciplinary proceedings. Therefore the plea of the
3rd respondent is rejected.
15. The next contention of the respondent is that under HR&CE
Act, if the 1st respondent has reason to believe that in the interest of proper
administration of an institution a scheme should be settled, he can frame /
modify the scheme. In exercise of the power conferred under section 64(5) the
1st respondent has modified the earlier scheme by following the procedures
under section 64 and framing of schemes rules. The respondents 1 to 3 have not
come out with the specific plea which part of the earlier scheme had become
impracticable or what is the reason to believe that the scheme ought to be
modified. Even in the impugned order the respondents had verbatim reproduced
the provisions of the section. In the counter the respondents have not stated
what is the reason to believe that the scheme ought to be modified. This Court is
of the considered opinion, that the Suo Motu O.A.No.11 of 2000 application
itself is bereft of any particulars, bereft of reason to modify the scheme. The
provisions of the Act ought to be invoked if there is reasons to believe and the
reasons ought to be explicitly stated. The said provisions cannot be misused. As
rightly pointed out by the petitioner, the right to administer religious
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endowments is guaranteed under Article 26 of the Constitution. Even the
HR&CE Act was enacted only to interfere whenever there is mismanagement or
misappropriation. Hence the provisions of HR&CE Act cannot be invoked
without any compelling circumstances stated in the Act.
16. The contention of the petitioner is that the respondents are
empowered to formulate a scheme under section 64(5) of the Act. If the
respondents are intended to any modification of a settled scheme, then the
respondents ought to follow the procedure that has been prescribed under
section 64(5)(a). Wherein under the provisions the respondents ought to give
notice by enclosing the proposal of modification under section 64(5)(a) to the
trustees, to the interest persons and thereafter consider the same. Admittedly the
Suo Motu O.A. is filed in the year 2000, the trustees and interested persons
were issued notice. The trustees and interested persons vehemently objected to
the proposed amendments and were waiting for hearing of the case. But after
lapse of 17 years the respondents have passed an order of “modified draft
scheme”. There is no proper notice before issuing the modified draft scheme,
since the same was issued after a lapse of 17 years. Moreover, the earlier notice
cannot be considered as notice at all, when the order is passed after the lapse of
17 years. Interestingly a specific plea was raised by the learned counsel
appearing for the writ petitioner in W.P.(MD)No.19081 of 2023 that all the 15
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respondents / parties are being represented by only one Advocate. In the said 15
respondents most of them would have died because the said petition was filed in
the year 2000 and the impugned order was passed in the year 2017. Hence it
ought to be construed that there was no proper notice to any of the parties. On
perusing the said order, it is seen that there are 15 respondents, the said
advocate was engaged by the Fit Person / Joint Commissioner. But it is seen
from the order that the said Advocate is representing the Fit Person as well as
the contesting private parties. When the private parties are contesting the case
vehemently that too the case is being contested against the appointment of Fit
Person / Executive Officer, the same Advocate representing the rival contesting
parties, would amount to mockery of justice. Hence this Court is of the
considered opinion that the entire proceeding is a mockery, the impugned order
is passed without notice to the contesting parties, hence it is violative of
principles of natural justice.
17. Since this Court has held that there is violative of principles of
natural justice, consequently, the plea of the respondents that the writ petition is
not maintainable when alternative statutory appellate remedy is available to the
petitioner is also rejected.
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W.P.(MD).No.19081 of 2023 & 16453 of 2017
18. The next contention that was raised by the petitioner is that
under Rule 2 of the Framing of Scheme Rules (G.O.Ms.No.4851 Revenue dated
26.11.1960), the Joint Commissioner ought to state the reasons for believe for
changing the scheme. On perusing the modified draft scheme, the reason for
modification, it is stated that the Joint Commissioner is satisfied that in the
interest of better administration of above petitions, modification is necessary.
Simply verbatim extraction of the provisions is not sufficient for exercising the
said power. Absolutely there are no reasons stated in the modified draft order,
hence this Court is inclined to interfere in the impugned order.
19. The next contention of the petitioner is that Rule 8 states under
what circumstances the scheme can be modified and the respondents have not
stated under what circumstances the present modification was proposed. In
order to consider this contention, the Rule 8 is extracted hereunder:
“8. (1) The powers of the Joint/Deputy Commissioner under section 64(5)
(a) or the Commissioner under section 65(4)(a), respectively, to modify or
to cancel a scheme settled or deemed to have been settled by a Court, shall
be subject to the condition that the Joint/Deputy Commissioner or the
Commissioner, as the case may be shall satisfy himself that such
modification or cancellation is necessary under all or any of the following
circumstances, namely:-
1. Where the provisions already contained in the scheme could not be
worked out properly in the interests of the institution concerned.
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W.P.(MD).No.19081 of 2023 & 16453 of 2017
2. Where the provisions though ordinarily precise and complete had
become under altered circumstances unsuitable to carry out the intentions
and objects of the provisions.
3. Where a scheme framed by the Court itself had in like manner become
unsuitable for the purpose.
4. Where it is necessary to provide sufficient safeguards for the protection
of the properties of the institutions and for realisation of the income
therefrom.
5. Where it is felt necessary to eliminate or minimise the difficulties which
may arise in the matter of nomination or election of trustee or trustees or
other procedure, if any, contemplated in such scheme.”
Since the present application is a Suo Motu Original Application, then the
burden is on the respondents to state under which sub clause under Rule 8 the
present modification arises. But the impugned order is silent. The 1 st and 2nd
respondent have not filed any counter and hence it ought to be taken that the
present case is not coming under any of the aforesaid five categories. The 3rd
respondent had filed counter but has not stated anything regarding Rule 8.
Moreover, he is not the appropriate authority to state, infact he is holding the
post as Executive Officer based on the impugned order and hence, he is an
interest party. Therefore, this Court necessarily have to come to the conclusion
that the very basis of the modification is not in accordance to Rule 8. The
respondents have acted beyond the circumstances granted with Rule 8, which is
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W.P.(MD).No.19081 of 2023 & 16453 of 2017
without any jurisdiction.
20. Further the enquiry contemplated under chapter V and VI ought
to be conducted as stated under Section 110, wherein it is stated that the
authority ought to act Judicially and ought to follow Civil Procedure Code. The
enquiry under section 64 comes under chapter V. In short, the Joint
Commissioner ought to have conducted Trial, call for evidence, witness etc.
before passing any order under section 64. In the present case, no documents
marked, no evidence recorded. On a bare reading of the impugned order, it
would be evident that the order is passed arbitrarily without any evidence, by
merely extracting the provisions of law.
21. For the reasons stated supra, this Court is of the considered
opinion that the very Suo Motu application in O.A.No.11 of 2000 itself is
without jurisdiction, illegal, mockery of justice and the same is liable to be
stuck of. Accordingly, the Suo Motu application in O.A.No.11 of 2000 is stuck
of, consequently the impugned orders dated 10.03.2017 and 19.06.2017 are
quashed. The writ petition in W.P.(MD)No.16453 of 2017 is allowed.
22. As far as the writ petition in W.P.(MD) No.19081 of 2023 is
concerned, the Deputy Commissioner have already submitted a report in Na.Ka.
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W.P.(MD).No.19081 of 2023 & 16453 of 2017
No.6285/2022/Aa1 dated 02.03.2023 recommending to appoint A.Manikkam
son of K.S.Ethiraj Chettiar, A.Venkatesh Kumar son of K.B.Veluchami,
V.Arunachalam son of K.B.Veluchami and all the three persons belong to the
Vanniyar Vysya Community. Therefore, the Commissioner HR&CE shall take
the same on file and issue orders appointing them as trustees within a period of
four weeks from the date of receipt of this order. Hence the W.P.(MD) No.19081
of 2023 is allowed. No costs and consequently all the Miscellaneous are closed.
23. Before parting with this judgment, this Court appreciates the 7 th
respondent who has placed the details of Puttu Thiruvilaiyadal and the brief
history of the litigation.
28.12.2023
NCC : Yes/No
Index : Yes / No
Internet : Yes/ No
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To
1.The Commissioner,
Hindu Religious and Charitable
Endowment Department,
No.19, Uthamar Gandhi Salai,
Nungambakkam, Chennai-600 034.
https://www.mhc.tn.gov.in/judis
W.P.(MD).No.19081 of 2023 & 16453 of 2017
2.The Joint Commissioner,
Hindu Religious & Charitable
Endowment Department,
Madurai District, Madurai.
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W.P.(MD).No.19081 of 2023 & 16453 of 2017
S.SRIMATHY, J.
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W.P.(MD).Nos.19081 & 16453 of 2023
28.12.2023
https://www.mhc.tn.gov.in/judis
