Madras High Court
S.P.Vasudevan vs The Commissioner on 30 April, 2015
Author: R.Mahadevan
Bench: R.Mahadevan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 30.04.2015 CORAM THE HONOURABLE MR.JUSTICE R.MAHADEVAN W.P(MD)No.18881 of 2014 and M.P(MD)Nos.2 of 2014 and 1 of 2015 1.S.P.Vasudevan 2.S.Balakrishnan 3.N.Mohanram 4.V.Venkatesan 5.K.Rangaraj ... Petitioners Vs. 1.The Commissioner, Hindu Religious and Charitable Endowments Department, Chennai - 600 034. 2.The Joint Commissioner, Hindu Religious and Charitable Endowments Administration Department, Madurai - 625 001. 3.The Election Officer/Inspector/Special Officer, Hindu Religious and Charitable Endowments Administration Department, Madurai North (Additional Charge), Madurai. 4.V.Pandurengan ... Respondents PRAYER Writ Petition is filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorari to call for the records pertaining to the impugned order passed by the first respondent in R.P.No.103/14, dated 10.10.2014 and quash the same. !For Petitioner : Ms.J.Anandhavalli ^For Respondents : Mr.VR.Shanmuganathan, Special Govt. Pleader for R.1 to R.3 Mr.G.R.Swaminathan for Mr.F.Deepak for R.4 ****** Date of reserving the Order : 21.04.2015 Date of pronouncing the Order : 30.04.2015 :ORDER
Seeking a Writ of Certiorari to quash the impugned order passed by the first respondent in R.P.No.103/14, dated 10.10.2014, the petitioner has come forward with the present writ petition.
2. The case of the petitioners as culled out from the averments in the affidavit filed in support of this writ petition, is as follows:
2.1. A Trust was created during 1898 by one Ammaluammal @ Guruvammal of Vadugakavalkooda Street, Madurai, by a Trust deed dated 03.11.1898. The income derived by the Trust was earmarked for the services in the Mandapam at the northern bank of river Vaigai, when Lord Kallazhagar is taken to and from Madurai during the Chitra Pournami Festival every year. The mandagapadi was to be performed in the Naidu Mandapam @ Ammalammal Mandapam.
2.2. Originally, a scheme was framed in O.S.No.48 of 1914 and it was decreed in confirmation of the trust deed and later, the Hindu Religious and Charitable Endowments Department (in short 'H.R. & C.E. Department') has taken over the control of the said trust. A board of management was constituted during 2009 and the fourth respondent was the Managing Trustee and the period of the board came to end on 11.11.2011.
2.3. Thereafter, the second respondent - Joint Commissioner, H.R. & C.E. Department, passed an order on 17.06.2013, appointing a Fit Person for managing the Trust. The said order has been put to challenge by the fourth respondent by filing the writ petition in W.P(MD)No.10172 of 2013, contending that there is no jurisdiction for appointment of a Fit Person as there was no specific allegation of mismanagement or misappropriation.
2.4. Aggrieved by the same, the fourth respondent filed W.P(MD)No.10172 of 2013 before this Court, wherein the third respondent herein and one Chandramohan were impleaded as respondents 3 and 4. Upon consideration of rival submissions, this Court, on 10.07.2014, has passed the following order:
"4. The learned Special Government Pleader appearing for the respondents 1 and 2 submitted that the petitioner's period of office expired on 11.11.2011 and the second respondent has been appointed for the welfare of the trust and as the period of the trustees has come to an end, they have no legal right to administer the trust. Admittedly, the impugned order has been stayed by this Court on 26.06.2013 and the festival has been performed during the Tamil month Chithirai in the year 2013 based on the interim order. Now, for the purpose of constituting a new board of trustees, election has to be conducted by the Joint Commissioner, namely, the first respondent.
5. The learned Special Government Pleader, on instructions, would submit that reasonable time may be granted to the first respondent to finalise the electoral roll and conduct the election. The petitioner as well as the impleaded respondents namely respondents 3 and 4 are ready and willing to participate in the election to be conducted by the first respondent.
6. In such view of the matter, since the impugned order has remained stayed for one year, the status quo prevailing as on date, shall be continued for a period of six weeks. Within such time, the first respondent shall finalise the electoral roll and conduct election so as to elect new board of trustees. It is made clear that the petitioner as well as the impleaded respondents namely respondents 3 and 4 shall cooperate in the conduct of the election. That apart the persons whose names, have been placed in the electoral roll also should cooperate in the conduct of the election. Since, the petitioner and other trustees have been continued by virtue of the interim order, it has been extended till the elections are conducted and the trustees shall not take any policy decision with regard to the administration of the trust and its properties and shall preserve the same in as is where is condition. It is also made clear that this Court has not gone into the rights or claim made by the respondents 3 and 4 in this writ petition."
2.5. Subsequent thereto, the second respondent called for the applications for registration in the voters list for appointment of trustees to the said Trust, by fixing the date of election as 14.08.2014 at 11.00 a.m. vide notification dated 22.07.2014. Aggrieved by the same, the said Chandramohan filed W.P(MD)Nos.13389 of 2014 and 13390 of 2014 and this Court, by order dated 18.08.2014, dismissed both the writ petitions.
2.6. Thereafter, the petitioners were elected as trustees of the said Trust and the second respondent has passed an order on 09.09.2014 to that effect and further, the second respondent, by proceedings dated 20.10.2014, directed the fourth respondent to hand over the charge to the petitioners. Meanwhile, the fourth respondent has filed the revision petition in R.P.No.103/2014 before the first respondent challenging the proceedings of the third respondent dated 12.08.2014. The first respondent, by order dated 10.10.2014, while disposing of the said revision petition, issued certain directions. Aggrieved by the same, the petitioners are before this Court.
3. This Court, on 21.11.2014, while admitting the writ petition, has granted the order of interim stay of the operation of the impugned order.
4. The fourth respondent filed a petition to vacate the interim stay granted by this Court, by filing a counter, wherein it is among other things, contended as under:
4.1. The third respondent, by his report dated 12.08.2014, stated that objections were received by him in respect of the nominations filed by six persons and there was no sufficient time for him to scrutinize the objections received as against them and therefore, he requested the first respondent to pass appropriate orders for the election to be conducted on 14.08.2014, however, the said report has not been considered by the first respondent and illegally conducted the election and thereby, the petitioners are disqualified to hold the post of trustees.
4.2. Further, the petitioners cannot invoke the jurisdiction of this Court under Article 226 of the Constitution of India, as there is an effective alternative remedy available by way of an appeal before the appellate authority, namely, the Principal Secretary to the Government, H.R & C.E. Department, Chennai, as against the impugned order and therefore, this writ petition is not maintainable in law and accordingly, prayed for the dismissal of the same.
5. Ms.J.Anandhavalli, learned Counsel for the petitioners made the following submissions:
5.1. Since the fourth respondent has been continuing illegally in the office of the Managing Trustee after the expiry of his tenure, he is not justified in filing the revision petition as against the notice calling for the applications for registration in the voters list for appointment of trustees to the said Trust.
5.2. The second respondent has rightly appointed a Fit Person to the Trust in the interregnum, as against which, the fourth respondent filed the writ petition in W.P(MD)No.10172 of 2013, wherein this Court directed the first respondent therein to finalise the electoral roll and conduct the election so as to elect new board of trustees.
5.3. The issue has already been settled by this Court in the order dated 18.08.2014, in W.P(MD)Nos.13389 and 13390 of 2014 and the attempt made by the fourth respondent in filing the revision petition before the first respondent is untenable and therefore, the order passed by the first respondent in the said revision petition also warrants interference by this Court.
5.4. The election to the board of trustees has been conducted on 14.08.2014 and the second respondent has also passed the proceedings relating to their appointment.
5.5. The fourth respondent, as an afterthought, has approached the first respondent with the revision petition and the first respondent ought to have rejected the claim of the fourth respondent, but, without doing so, has issued directions contrary to the earlier orders passed by this Court. In sum and substance, the learned Counsel for the petitioners prayed for setting aside the impugned order.
6. Mr.VR.Shanmuganathan, learned Special Government Pleader for the respondents 1 to 3, would submit that the first respondent has categorically held in the revision petition itself that the said revision petition itself is not maintainable and hence, no prejudice would be caused to the petitioners. Further, it is contended that the first respondent in the impugned order, made it clear that it is for the competent authority to consider the objections as per the scheme provisions and the Act and thereby, directed the second respondent herein to conduct a detailed enquiry on the applications filed by 10 persons and the objections of the petitioners and others in the light of Section 26 of the Act and take steps to appoint non- hereditary trustees in terms of the scheme and Section 47 of the H.R. & C.E. Act. Therefore, he prayed for the dismissal of this writ petition.
7. Mr.G.R.Swaminathan, learned Counsel appearing for Mr.F.Deepak, learned Counsel for the fourth respondent, reiterated the averments in the counter and contended that the second respondent without taking note of the report filed by the third respondent, has conducted the election and it is not proper on the part of the second respondent in not considering the objections received in respect of the said six persons who submitted their nominations. He further submitted that the petitioners are having effective alternative remedy of appeal before the Principal Secretary to the Government, H.R & C.E. Department, against the impugned order and therefore, prayed for the dismissal of this writ petition.
8. This Court has carefully considered the rival submissions and perused the materials available on record.
9. Appointment of board of trustees to the above said Trust is under litigation before this Court all along and ultimately, the aim and object for which, the said Trust is constituted, is being defeated by themselves, by paralyzing the smooth functioning of the Trust, which, weighs heavily in the mind of this Court.
10. The erstwhile Managing Trustee, whose tenure was over long back, continued to occupy the said post, as against the scheme framed for the purpose of the said Trust. When the tenure of the board of trustees is being expired, the election for the new board of trustees has to be conducted in accordance with the original scheme degree passed to that effect.
11. Any deviation in this regard, would no doubt prejudice the interest of the said Trust and it is inadmissible in law to allow the same to continue any more.
12. In the case on hand, the office of the fourth respondent as Managing Trustee got expired on 11.11.2011. Immediately thereafter, the election for the board of trustees has to be held in terms of the scheme work, but, the said procedure has been given a complete go-by, by the authorities, leading to all calamities which had happened thereafter. Considering the need of the hour, the second respondent appointed a Fit Person by order dated 17.06.2013 and even that order has also been questioned by the erstwhile Managing Trustee, namely, the fourth respondent in W.P(MD)No.10172 of 2013, wherein this Court issued directions for the conduct of the election. During the electoral process, the said Chandramohan filed two writ petitions in W.P(MD)Nos.13389 and 13390 of 2014 and this Court, by order dated 18.08.2014, observed thus:
"5. Pursuant thereto, procedures for election were commenced, notification had been issued and the election is scheduled to be conducted on 14.08.2014. At this juncture, the present writ petition in W.P(MD)No.13389 of 2014 had been filed, challenging the impugned notification dated 22.07.2014, stating that it is not inconsonance with the directions issued by this Court in the earlier writ petition and this Court directed the Joint Commissioner to conduct election and therefore the second respondent Executive Officer, Arulmigu Madanagopalaswami Thirukoil, has no jurisdiction to conduct the election. In W.P(MD)No.13390 of 2014, the petitioner has sought for a direction upon the respondents to consider his representation, dated 22.07.2014, in which he has challenged the nomination made by the respondents 3 and 4 namely Mr.N.Mohan and Mr.V.Venkatesan stating that they are not the residents of the particular street and therefore not entitled to file nomination.
6. The learned Special Government Pleader appearing for the respondents submitted that the impugned notification, dated 22.07.2014, issued by the second respondent the Executive Officer, Arulmigu Madanagopalaswami Thirukoil, is in pursuance to the authorization given by the first respondent Joint Commissioner, H.R & C.E Department, dated 08.08.2014 in Na.Ka.No.5683/2013/A1, which is based on the direction issued by this Court in the earlier writ petition, on 10.07.2014. Therefore, it is submitted that it is incorrect to state that fit person is conducting the election and the factual position being the first respondent is conducting election and the impugned notification itself is in pursuance to the authorization given by the first respondent. Therefore, the only ground raised by the petitioner to challenge the impugned notification does not survive in the light of the fact that the fist respondent has established by producing the documents stating that after the directions issued by this Court, authorization has been given to the second respondent to do certain acts for the purpose of enabling the first respondent to conduct the election. Therefore, on this ground the impugned notification cannot be quashed.
7. Insofar as the nominations of Mr.N.Mohan and Mr.V.Venkatesan are concerned, it is submitted by the learned Special Government Pleader that they are the residents of the said street and ration cards, voters identity cards and certificates from the Village Administrative Officer have been produced. Further, the learned Special Government Pleader submitted that the electoral roll has been published, the petitioner has also signed the same and his name finds place in Serial No.81, which is evident from the copy of the electoral roll published. Therefore, the allegation made by the petitioner as regards the nominations made by Mr.N.Mohan and Mr.V.Venkatesan cannot be accepted and question of issuing a direction to consider the representation after the election process has commenced does not arise."
(emphasis supplied.)
13. In the light of the above observations, this Court is of the view that the fourth respondent filed the above revision petition before the first respondent questioning the nominations of six persons, only after the order passed by this Court in the above writ petitions in W.P(MD)Nos.13389 and 13390 of 2014, on 18.08.2014 and this Court has categorically given a finding to the effect that the allegation of the fourth respondent regarding the nominations cannot be accepted and therefore, rejected the same. In such an event, it is not for the fourth respondent to indulge in litigative battle in order to make hurdles to the smooth running of the Trust in one way or the other. Admittedly, the fourth respondent did not test the order of this Court in the writ appeal. Therefore, this Court finds that the revision petition filed by the fourth respondent is unsustainable. The first respondent has rightly found that the revision petition filed by the fourth respondent is not maintainable. However, if the petitioners are aggrieved over the directions issued by the first respondent in the revision petition, it is open to the petitioners to approach the appellate authority by filing an appeal as per law.
14. In the result, this writ petition is disposed of, with the above observations. Consequently, the connected miscellaneous petitions are closed. No costs.
Index :Yes/No 30.04.2015 Internet :Yes/No rsb Note: Issue order copy on 04.05.2015. To 1.The Commissioner, Hindu Religious and Charitable Endowments Department, Chennai - 600 034. 2.The Joint Commissioner, Hindu Religious and Charitable Endowments Administration Department, Madurai - 625 001.
3.The Election Officer/Inspector/Special Officer, Hindu Religious and Charitable Endowments Administration Department, Madurai North (Additional Charge), Madurai.
R.MAHADEVAN, J.
rsb PRE-DELIVERY ORDR MADE IN W.P(MD)No.18881 of 2014 and M.P(MD)Nos.2 of 2014 and 1 of 2015 30.04.2015