Madras High Court
G.Balasubramaniya Iyer vs Durai Bubalan on 9 November, 2023
Author: P.D.Audikesavalu
Bench: Sanjay V.Gangapurwala, P.D.Audikesavalu
W.A. Nos. 1218 and 1282 of 2021
and
W.P. No. 6130 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 09.11.2023
CORAM :
THE HON'BLE MR. SANJAY V.GANGAPURWALA, CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE P.D.AUDIKESAVALU
W.A. Nos. 1218 and 1282 of 2021
and
W.P. No. 6130 of 2021
W.A. No. 1218 of 2021:-
G.Balasubramaniya Iyer ... Appellant
-vs-
1. Durai Bubalan
2. The Commissioner
Hindu Religious and Charitable Endowments Department
Nungambakkam
Chennai-600034.
3. The Assistant Commissioner
Hindu Religious and Charitable Endowments Department
Kanchipuram – 631502.
4. Executive Officer
Arulmigu Sri Kandasamy Thirukoil
Thiruporur
Chengalpattu – 603110. ... Respondents
____________
https://www.mhc.tn.gov.in/judis
Page of 1 of 32
W.A. Nos. 1218 and 1282 of 2021
and
W.P. No. 6130 of 2021
Prayer:- Appeal under Clause 15 of the Letters Patent against the
order dated 02.02.2021 passed in W.P. No. 1640 of 2021 by the
learned Single Judge.
For Appellant : Mr. K.Chandrasekaran
For Respondents : Mr. V.Ragavachari
Senior Counsel
for M/s.V.Srimathi (for R1)
Mr. S.Yashwanth, AGP (for R2 & R3)
Mr. A.K.Sriram, Senior Counsel
for M/s.A.S.Kailasam & Associates
(for R4)
W.A. No. 1282 of 2021:-
Adheenakarthar
Srimath Sivagana Balaya Swamigal Thirumadam
Rep by its Manager
Mailam Bommapuram Adheenam
Mailam, Villupuram District. ... Appellant
-vs-
1. Durai Bubalan
2. The Commissioner
Hindu Religious and Charitable Endowments Department
Nungambakkam, Chennai-600034.
____________
https://www.mhc.tn.gov.in/judis
Page of 2 of 32
W.A. Nos. 1218 and 1282 of 2021
and
W.P. No. 6130 of 2021
3. The Assistant Commissioner
Hindu Religious and Charitable Endowments Department
Kanchipuram – 631502.
4. Executive Officer
Arulmigu Sri Kandasamy Thirukoil
Thiruporur
Chengalpattu – 603110. ... Respondents
Prayer:- Appeal under Clause 15 of the Letters Patent against the
order dated 02.02.2021 passed in W.P. No. 1640 of 2021 by the
learned Single Judge.
For Appellant : Mr. T.S.Baskaran
For Respondents : Mr. V.Ragavachari
Senior Counsel
for M/s.V.Srimathi (for R1)
Mr. S.Yashwanth, AGP (for R2 & R3)
Mr. A.K.Sriram, Senior Counsel
for M/s.A.S.Kailasam & Associates
(for R4)
W.P. No. 6130 of 2021:-
Adheenakarthar
Srimath Sivagana Balaya Swamigal Thirumadam
Rep by its Manager
Mailam Bommapuram Adheenam
Mailam, Villupuram District. ... Petitioner
-vs-
____________
https://www.mhc.tn.gov.in/judis
Page of 3 of 32
W.A. Nos. 1218 and 1282 of 2021
and
W.P. No. 6130 of 2021
1. The Commissioner
Hindu Religious and Charitable Endowments Department
Uthamar Gandhi Road
Chennai-600 034.
2. The Assistant Commissioner
Hindu Religious and Charitable Endowments Department
Kancheepuram – 631502.
3. The Executive Officer
Arulmigu Sri Kandasamy Thirukoil
Thiruporur, Chengalpattu District.
4. Chidambara Sonachala Swamigal
C/o. Sri Seshadiri Swamigal Ashram
Thiruvannamalai.
5. Durai Bubalan ... Respondents
Prayer:- Petition filed under Article 226 of the Constitution of India
for issuance of a Writ of Certiorarified Mandamus, calling for the
records of the First Respondent in its proceedings dated 28.05.2020
vide Na. Ka. No.1753-2/2020-S1 in appointment of Madathipathi for
Thiruporur Chidambara Swamigal Thirumadam and quash the same
as void and illegal and consequently direct the First Respondent to
recognize the Madathipathi appointed by the Writ petitioner by their
Deed of Appointment dated 05.02.2020 vide Document No.4/2020
on the file of SRO, Mailam.
____________
https://www.mhc.tn.gov.in/judis
Page of 4 of 32
W.A. Nos. 1218 and 1282 of 2021
and
W.P. No. 6130 of 2021
For Petitioner : Mr. T.S.Baskaran
For Respondents : Mr. S.Yashwanth, AGP
(for R1 & R2)
Mr. A.K.Sriram, Senior Counsel
for M/s.A.S.Kailasam & Associates
(for R3)
No appearance (for R4)
Mr. V.Ragavachari, Senior Counsel
for M/s.V.Srimathi (for R5)
COMMON JUDGMENT
(Judgment of the Court was made by P.D. AUDIKESAVALU, J.) Since the present cases relate to the appointment of Madathipathi for Thiruporur Thirumadam Sri Chidambara Swamigal Mutt (hereinafter referred to as 'the Mutt' for short) and are inter-connected, they have been heard together and are disposed by this common order.
2. It is borne out from the materials placed on record that the worshippers of the Sri Kandhasamy Temple at Thiruporur in Chengalpattu District had instituted a suit in O.S. No. 13 of 1910 for ____________ https://www.mhc.tn.gov.in/judis Page of 5 of 32 W.A. Nos. 1218 and 1282 of 2021 and W.P. No. 6130 of 2021 settlement of a scheme and appointment of a Saniyasi Trustee of the Mutt in which a decree dated 01.11.2010 had been passed by the District Court, Chengalpattu, followed by another decree dated 17.04.1928 passed by that Court in A.S. Nos. 16 and 40 of 1927 arising out of the appeals against the decree dated 25.10.1926 in I.A. No. 93 of 1926 in O.S. No. 59 of 1920 passed by the Sub-Court, Chengalpattu (which are collectively hereinafter referred to as 'Scheme Decree' for the sake of convenience).
3. This Court by order dated 16.12.2019 in the Writ Petition in W.P. No. 34832 of 2019 filed by Thavathiru Chidambara Sonachala Swamigal had directed the Commissioner, Hindu Religious and Charitable Endowments Department, Government of Tamil Nadu (hereinafter referred to as 'the Commissioner' for short) to consider his representation dated 22.04.2019 by issuing notice and conducting enquiry with him and all other interested persons concerned for appointment of the Madathipathi of the Mutt. In compliance of the said order, the Commissioner by proceedings in Na.Ka.No.1573-2/2020/S1 dated 28.05.2020 came to the ____________ https://www.mhc.tn.gov.in/judis Page of 6 of 32 W.A. Nos. 1218 and 1282 of 2021 and W.P. No. 6130 of 2021 conclusion that the Madathipathi of the Mutt has to be elected by persons above 18 years belonging to the Veera Saivar sect, who have been enrolled as voters after notifying the same in the District Gazette and two daily newspapers as per the terms of the Scheme Decree, and has appointed the Assistant Commissioner, Hindu Religious and Charitable Endowments Department, Kancheepuram, as Fit Person of the Mutt to carry on its administration till election of the Madathipathi takes place.
4. Subsequently, one Durai Bubalan claiming to be an ardent devotee of the Mutt had filed the Writ Petition in W.P. No. 1640 of 2021 before this Court seeking a direction to the Assistant Commissioner, Hindu Religious and Charitable Endowments Deparment, Kancheepuram, to conduct election of the new Madathipathi of the Mutt through a commissioner as per the directions issued by the Commissioner in the proceedings in Na.Ka.
No. 1573-2/2020/S1 dated 28.05.2020. This Court by order dated 02.02.2021 recorded the consensus expressed by all parties and directed the process for preparing the voters list be commenced ____________ https://www.mhc.tn.gov.in/judis Page of 7 of 32 W.A. Nos. 1218 and 1282 of 2021 and W.P. No. 6130 of 2021 after issuing necessary publication within two weeks and complete the exercise of conduct of election of the Madathipathi of the Mutt within a period of two months thereafter as per the terms of the Scheme Decree.
5. In the meanwhile, one G.Balasubramaniya Iyer has filed a suit in O.S. No. 8 of 2016 in the Sub-Court, Chengalpattu for declaration that he is the Hereditary Trustee (15th Pontiff) of the Mutt by virtue of the deed of declaration dated 10.09.2010 said to have been executed by the 14th Pontiff of the Mutt, viz., Sri-La-Sri Chidambara Sivagnana Swamigal. The said G.Balasubramaniya Iyer has obtained leave by order dated 09.04.2021 in C.M.P. No. 4819 of 2021 and preferred the appeal in W.A. No. 1218 of 2021 invoking Clause 15 of the Letters Patent, 1965, against the said order dated 02.02.2021 in W.P. No. 1640 of 2021 passed by this Court raising the contention that its implementation would adversely affect the relief sought by him in the aforesaid suit.
____________ https://www.mhc.tn.gov.in/judis Page of 8 of 32 W.A. Nos. 1218 and 1282 of 2021 and W.P. No. 6130 of 2021
6. Similarly, Adheenakarthar of Srimath Sivagnana Balaya Swamigal Thirumadam, represented by its Manager, Mailam Bommapuram Adheenam (hereafter referred to as the 'Mailam Adheenam' for short) has also obtained leave of this Court by order dated 15.04.2021 in C.M.P. No. 5388 of 2021 and has preferred appeal in W.A. No. 1282 of 2021 against the same order dated 02.02.2021 in W.P. No. 1640 of 2021 passed by this Court contending that 12th Pontiff of the Mutt while appointing his successor had taken advice and consent from the Mailam Adheenam and executed a Will dated 05.05.1966 that he should be consulted for appointing his successor.
7. The said Mailam Adheenam has also challenged the said proceedings in Na.Ka. No. 1573-2/2020/S1 dated 28.05.2020 passed by the Commissioner in the Writ Petition in W.P. No. 6130 of 2021 before this Court.
8. We have extensively heard Mr. K.Chandrasekaran, Learned Counsel for the Appellant in W.A. No. 1218 of 2021, ____________ https://www.mhc.tn.gov.in/judis Page of 9 of 32 W.A. Nos. 1218 and 1282 of 2021 and W.P. No. 6130 of 2021 Mr. T.S.Baskaran, Learned Counsel for the Appellant in W.A. No. 1282 of 2021 and the Petitioner in W.P. No. 6130 of 2021 and Mr. V.Raghavachari, Learned Senior Counsel appearing for the First Respondent in W.A. Nos. 1218 and 1282 of 2021 and Fifth Respondent in W.P. No. 6130 of 2021 and Mr. S.Yashwanth, Learned Additional Government Pleader appearing for the Second and Third Respondents in W.A. Nos. 1218 and 1282 of 2021 and First and Second Respondents in W.P. No. 6130 of 2021 and Mr. A.K.Sriram, Learned Senior Counsel for the Fourth Respondent in W.A. Nos. 1218 and 1282 of 2021 and Third Respondent in W.P. No. 6130 of 2021 and perused the materials placed on record, apart from the pleadings of the parties.
9. Before proceeding further, it requires to be noticed here that the claims of the Appellants in the Writ Appeals and the Petitioner in the Writ Petition, in essence, seek modification and/or cancellation of the Scheme Decree, which has been passed under Section 92 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the CPC' for short).
____________ https://www.mhc.tn.gov.in/judis Page of 10 of 32 W.A. Nos. 1218 and 1282 of 2021 and W.P. No. 6130 of 2021
10. The question that then arises for consideration is whether the suit in O.S. No. 8 of 2016 filed before the Sub-Court, Chengalpattu by the Appellant in W.A. No. 1218 of 2021 would be the appropriate remedy to modify the Scheme Decree, which exists for the administration of the Mutt?
11. Another incidental determination requires to be made as to the manner in which the Appellants in W.A. Nos. 1218 and 1282 of 2021 would have to pursue their respective claims for appointment of the Madathipathi of the Mutt?
12. In this backdrop, reference must be straight away made to the binding decision of the Hon'ble Supreme Court of India in T.Lakshmikumara Thathachariar -vs- Commissioner, H.R.C.E. [(1998) 6 SCC 643] cited by Learned Senior Counsel appearing for the Fourth Respondent in W.A. Nos. 1218 and 1282 of 2021 where the legal position arising in analogous circumstances has been discussed in the following words:-
____________ https://www.mhc.tn.gov.in/judis Page of 11 of 32 W.A. Nos. 1218 and 1282 of 2021 and W.P. No. 6130 of 2021 “7. The appellant contends that the Deputy Commissioner has no jurisdiction under Section 64(5) of the Act of 1959 to modify a scheme originally framed under Section 92 of the Civil Procedure Code by the Madras High Court. To decide this issue it is necessary to look at the relevant provisions of the various Acts which have governed the Hindu religious endowments in the State of Tamil Nadu. The scheme as originally framed was under Section 92 of the Civil Procedure Code. Thereafter the Madras Hindu Religious Endowments Act (Act 2 of 1927) came into force. Section 75 of the said Act of 1927 is as follows:
“75. Where the administration of a religious endowment is governed by any scheme settled under Section 92 of the Code of Civil Procedure, 1908, such scheme shall, notwithstanding any provisions of this Act which may be inconsistent with the provisions of such scheme, be deemed to be a scheme settled under this Act; and such scheme may be modified or cancelled in the manner provided by this Act.” Therefore, the scheme in the present case which was settled under Section 92 of the Code of Civil Procedure, 1908 was deemed to be a scheme settled ____________ https://www.mhc.tn.gov.in/judis Page of 12 of 32 W.A. Nos. 1218 and 1282 of 2021 and W.P. No. 6130 of 2021 under the said Act of 1927. Section 57(9) of the said Act of 1927 provided as follows:
“57. (9) Any scheme of administration settled by a court under this section or which under Section 75 is deemed to be a scheme settled under this Act may, at any time for sufficient cause, be modified or cancelled by the court on an application made by the Board or the trustee or any person having interest but not otherwise.” Therefore, under the said Act of 1927, the existing scheme in the present case could be modified or cancelled by the court on an application made by the Board (constituted under the said Act) or the trustees or any person having interest. It was in exercise of this power under Section 57(9) of the said Act of 1927 that the scheme was settled by the Madras High Court by its order of 17-11-1941.
8. The said Act of 1927 was succeeded by the Madras Hindu Religious and Charitable Endowments Act (Act 19 of 1951) (hereinafter referred to as “the said Act of 1951”). Section 103 of the said Act of 1951 provided that “notwithstanding the repeal of the Madras Hindu Religious and Charitable Endowments Act being ____________ https://www.mhc.tn.gov.in/judis Page of 13 of 32 W.A. Nos. 1218 and 1282 of 2021 and W.P. No. 6130 of 2021 Act 2 of 1927 (hereinafter referred to as ‘the said Act’)….
***
(d) all schemes settled or modified by a court of law under the said Act or under Section 92 of the Code of Civil Procedure, 1908 shall be deemed to have been settled or modified by the court under this Act and shall have effect accordingly.” Therefore, the existing scheme in the present case was deemed to be a scheme under the said Act of 1951. Section 62(3)(a) of the said Act of 1951 provided as follows:
“62. (3)(a) Any scheme for the administration of a religious institution settled or modified by the court in a suit under sub-section (1) or on an appeal under sub-section (2) or any scheme deemed under Section 103, clause (d) to have been settled or modified by the court may, at any time, be modified or cancelled by the court on an application made to it by the Commissioner, the trustee or any person having interest.” Therefore, under the provision of Section 62(3)(a) of the said Act of 1951, the scheme in the present case which was deemed to be a scheme under the said Act ____________ https://www.mhc.tn.gov.in/judis Page of 14 of 32 W.A. Nos. 1218 and 1282 of 2021 and W.P. No. 6130 of 2021 of 1927 by virtue of Section 103(d) could be modified or cancelled by the Court under Section 62(3)(a) of the new Act of 1951. No such modification was, however, made.
9. The Act of 1951 was succeeded by the Madras (later renamed as Tamil Nadu) Hindu Religious and Charitable Endowments Act, being Act 22 of 1959.
Section 118 of the said Act of 1959 repealed the Madras Hindu Religious and Charitable Endowments Act of 1951. However, under sub-section (2)(a) of Section 118, notwithstanding the repeal of the said Act (Act 19 of 1951), schemes settled or deemed to have been settled under the said Act, i.e., Act 19 of 1951 shall, insofar as they are not inconsistent with this Act, be deemed to have been settled by the appropriate authority under the corresponding provisions of this Act, and shall have effect accordingly. Section 118(2)(a) is as follows:
“118. (2)(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 ____________ https://www.mhc.tn.gov.in/judis Page of 15 of 32 W.A. Nos. 1218 and 1282 of 2021 and W.P. No. 6130 of 2021 taken, schemes settled or deemed to have been settled and things done or deemed to have been done by the Government, the Commissioner, a Joint Commissioner, a Deputy Commissioner, an Area Committee or an Assistant Commissioner under the said Act, shall insofar 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.” (emphasis ours) As a result, the present scheme which became a deemed scheme framed under the Act of 1951, was now deemed to have been settled under the said Act of 1959 by an appropriate authority under the corresponding provisions of the said Act of 1959.
10. Under Section 64 of the said Act of 1959, the power to settle schemes is conferred on the Joint Commissioner or Deputy Commissioner. Sub-section 5(a) of Section 64 deals with modification or cancellation of a scheme in force. It is as follows:
“64. (5)(a) The Joint Commissioner or the Deputy Commissioner may, at any time, after ____________ https://www.mhc.tn.gov.in/judis Page of 16 of 32 W.A. Nos. 1218 and 1282 of 2021 and W.P. No. 6130 of 2021 consulting the trustee and the persons having interest by order, modify or cancel any scheme in force settled under sub-section (1) or any scheme in force settled or modified by the Board under the Madras Hindu Religious Endowments Act, 1926 (Madras Act II of 1927), or deemed to have been settled under that Act or any scheme in force settled or modified by the Joint Commissioner/Deputy Commissioner or the Commissioner under this Act, or any scheme in force settled or modified by the court in a suit under sub-section (1) of Section 70, or on an appeal under sub-section (2) of that section or any such scheme in force deemed to have been settled or modified by the court under clause (a) of sub-section (2) of Section 118:
Provided that such cancellation or modification of a scheme in force settled or modified by the court in a suit under sub-section (1) of Section 70 or on an appeal under sub-section (2) of that section or of a scheme in force deemed to have been settled or modified by the court under clause (a) of sub-section (2) of Section 118 shall be made only subject to ____________ https://www.mhc.tn.gov.in/judis Page of 17 of 32 W.A. Nos. 1218 and 1282 of 2021 and W.P. No. 6130 of 2021 such conditions and restrictions as may be prescribed.” (emphasis ours)
11. Section 64(5)(a) expressly confers power on the Joint Commissioner or the Deputy Commissioner to modify or cancel a scheme in force which is deemed to have been settled or modified by the court under clause (a) of sub-section (2) of Section 118. The present scheme framed by the Court, becomes under Section 118(2)(a), a scheme deemed to have been settled by the appropriate authority under the said Act of 1959. It was also a scheme which was earlier, during the subsistence of Act 2 of 1927, deemed to have been settled under that Act. Therefore, Section 64(5)(a) expressly confers a power on the Joint Commissioner or the Deputy Commissioner to modify or cancel a scheme framed earlier under previous legislation including a scheme which is deemed to have been settled under a corresponding provision of Act 19 of 1951. The High Court has, therefore, rightly held that the Deputy Commissioner has jurisdiction to modify the scheme in the present case.
12. According to the appellant, only schemes which are settled or deemed to be settled or modified by the ____________ https://www.mhc.tn.gov.in/judis Page of 18 of 32 W.A. Nos. 1218 and 1282 of 2021 and W.P. No. 6130 of 2021 court under Section 118(2)(a) would fall within the ambit of the amending power of the Deputy or Joint Commissioner under Section 64(5). He has emphasised the words “deemed to be settled or modified by the court”. The appellant contends that under Section 118(2)(a), there is no reference to any scheme being deemed to be settled by a court.
Therefore, the present scheme will not be covered under Section 64(5). The same contention was considered by the Madras High Court in the case of R.Thatha Desika Thathachariar -vs- Deputy Commissioner, H.R.C.E. [(1970) 2 MLJ 475]. This decision pertains to the same scheme which is being considered here. The Madras High Court, after considering the provision of Section 64(5) and Section 118(2)(a) as also Section 103(d) of the said Act of 1951, negatived this contention and also further held that there was no distinction between a scheme settled and a scheme modified for the purposes of Section 118(2)(a). The Madras High Court said that the Deputy Commissioner had jurisdiction to modify the present scheme.
13. The appellant, however, relied upon another judgment of the Madras High Court in the case of ____________ https://www.mhc.tn.gov.in/judis Page of 19 of 32 W.A. Nos. 1218 and 1282 of 2021 and W.P. No. 6130 of 2021 O.Radhakrishnan -vs- Manickam [(1974) 2 MLJ 179]. The Court in that case was concerned with the power of the Commissioner to modify or cancel any scheme in respect of a math under Section 65 of the Act of 1959. The Court, however, in the course of its judgment also interpreted Section 118(2)(a) of the Act of 1959 and held that this section makes no reference to a scheme settled or deemed to have been settled by a court.
14. The interpretation put in this judgment on Section 118(2)(a) in the context of Section 65 does not appear to be correct. In order to correctly analyse the provisions of Section 64(5)(a) in the context of Section 118(2)(a), it is necessary to analyse the two sections. Section 118 is a section dealing with repeals and savings. Under sub-section (1), the said Act of 1951 is repealed. Under sub-section (2) notwithstanding such repeal, certain things are saved. Under clause (a) of sub-section (2), the following are saved:
(1) Rules, notifications, certificates issued or deemed to be issued under the Act of 1951.
(2) Orders passed or deemed to be passed under the Act of 1951.
____________ https://www.mhc.tn.gov.in/judis Page of 20 of 32 W.A. Nos. 1218 and 1282 of 2021 and W.P. No. 6130 of 2021 (3) Decisions made or deemed to be made under the Act of 1951.
(4) Proceedings or action taken or deemed to be taken under the Act of 1951.
(5) Schemes settled or deemed to be settled under the Act of 1951, and (6) Things done by:
(a) the Government;
(b) the Commissioner;
(c) the Joint Commissioner;
(d) the Deputy Commissioner;
(e) the Assistant Commissioner; and
(f) the Area Committee or deemed to be done by these authorities under the Act of 1951.
These are all now deemed to be done under the Act of 1959 and these are deemed to have been done by the appropriate authority under the Act of 1959. Thus all these actions under the Act of 1951 are saved by virtue of Section 118(2)(a). Thus, schemes settled or deemed to be settled under the Act of 1951 are expressly saved. In this context, if one looks at Section 64(5)(a) which deals with the power of the Joint Commissioner or the Deputy Commissioner to modify or cancel schemes in force, the Joint ____________ https://www.mhc.tn.gov.in/judis Page of 21 of 32 W.A. Nos. 1218 and 1282 of 2021 and W.P. No. 6130 of 2021 Commissioner or the Deputy Commissioner has been given the power to modify or cancel the following schemes:
(1) a scheme settled under Section 64(1) (the Act of 1959);
(2) a scheme settled or modified by the Board under the Act of 1927;
(3) a scheme deemed to be settled under the Act of 1927;
(4) a scheme settled or modified by the Joint Commissioner, Deputy Commissioner or Commissioner under the Act of 1959; (5) a scheme settled or modified by the court in a suit under Section 70(1) or in appeal under Section 70(2) of the Act of 1959; and (6) a scheme deemed to be settled or modified by the court under Section 118(2)(a).
Therefore, under Section 64(5), apart from the schemes framed under the current Act of 1959, the scheme settled by the Board as well as by the court under the Act of 1927 or deemed to be so settled are covered by Section 64(5)(a). Similarly, schemes which are settled or deemed to be settled under the Act of 1951 are covered by the last part of Section 64(5). The reference in the last part of Section 64(5)(a) to ____________ https://www.mhc.tn.gov.in/judis Page of 22 of 32 W.A. Nos. 1218 and 1282 of 2021 and W.P. No. 6130 of 2021 Section 118(2)(a) is for the purpose of including in Section 64(5)(a) all those schemes settled or deemed to be settled under the Act of 1951 and saved by Section 118(2)(a). In Section 64(5)(a), the words “by the court” have a reference to schemes which were settled or deemed to be settled or modified by the court under the Act of 1951. In respect of schemes deemed to be settled by the court under the Act of 1951, the reference is clearly to the schemes covered by Section 103(d) of the Act of 1951. All those schemes which were so settled or modified or deemed to be so settled or modified by the court under Section 103(d) of the Act of 1951, are now covered and validated under Section 118(2)(a). These schemes so validated and continued under the Act of 1959 can also be modified under Section 64(5)(a) of the Act of 1959.
15. Therefore, under Section 64(5)(a), all schemes in force deemed to have been settled or modified by the court under the Act of 1951 and covered by clause (a) of sub-section (2) of Section 118, are subject to modification or cancellation under the provisions of Section 64(5)(a). The decision of the Madras High Court in the case of O.Radhakrishnan -vs-
____________ https://www.mhc.tn.gov.in/judis Page of 23 of 32 W.A. Nos. 1218 and 1282 of 2021 and W.P. No. 6130 of 2021 Manickam [(1974) 2 MLJ 179] does not give, in this context, a correct interpretation of law. The scheme in the present case can be modified under Section 64(5)(a) of the said Act of 1959. What is more, it was expressly so held in the case of this very scheme by the Madras High Court in the case of R.Thatha Desika Thathachariar -vs- Deputy Commssioner, H.R.C.E. [(1970) 2 MLJ 475].
16. It is next contended that the provisions of Section 64(5) are an attempt by the legislature to nullify orders of the court in the form of schemes framed by the court under earlier legislations and, therefore, Section 64(5) must be considered as unconstitutional being an attempt to set aside or modify a decree of the court. The High Court has rightly held that this is not a case of passing a legislation in order to nullify the interpretation of law given in the judgment of a court of law. The schemes which were framed by the courts under earlier legislation were schemes which were capable of modification or cancellation in accordance with law even under the legislation under which such schemes were framed. While repealing the earlier legislation when the new legislation came into force, the power to ____________ https://www.mhc.tn.gov.in/judis Page of 24 of 32 W.A. Nos. 1218 and 1282 of 2021 and W.P. No. 6130 of 2021 modify and cancel such schemes was expressly transferred under the new legislation to the authorities specified therein. Under the present legislation of 1959, the authority which has the power so to modify the scheme is the Deputy Commissioner or Joint Commissioner. We do not see any attempt to set aside any decree of the Court by legislation in the present case. ” Viewed from that perspective, it would necessarily follow that the Appellants in W.A. Nos. 1218 and 1282 of 2021 would have to invoke Section 64(5) of the Act of 1959, if they intend to seek any modification or cancellation of the Scheme Decree.
13. Learned Counsel for the Appellant in W.A. No. 1218 of 2021 attempts to persuade this Court that since the trial of the suit in O.S. No. 8 of 2016 instituted by the said Appellant before the Sub-Court, Chengalpattu, is at an advanced stage, all the disputes raised by the contesting parties could be comprehensively adjudicated in that proceeding. In this regard, it must be recapitulated that the Hon'ble Supreme Court of India in the decision in Idol of Sri Renganathaswamy -vs- P.K.Thoppulan ____________ https://www.mhc.tn.gov.in/judis Page of 25 of 32 W.A. Nos. 1218 and 1282 of 2021 and W.P. No. 6130 of 2021 Chettiar, Ramanuja Koodam Anandhana Trust [(2020) 17 SCC 96] has observed as follows:-
“26. .... Section 108 of the 1959 Act bars the jurisdiction of civil courts to try matters regulated by the provisions of the 1959 Act. Section 108 provides thus:
“108. Bar of suits in respect of administration or management of religious institutions, etc.— No suit or other legal proceeding in respect of the administration or management of a religious institution or any other matter or dispute for determining or deciding which provision is made in this Act shall be instituted in any court of law, except under, and in conformity with, the provisions of this Act.” In view of Section 108, no suit or legal proceedings in respect of the administration or management of a religious institution or any other matter for determining or deciding which provision is made in the Act shall be instituted in a civil court. Any dispute with respect of administration or management of religious institutions is governed in accordance with the provisions of the 1959 Act. ....” ____________ https://www.mhc.tn.gov.in/judis Page of 26 of 32 W.A. Nos. 1218 and 1282 of 2021 and W.P. No. 6130 of 2021 That apart, any person aggrieved by an order passed by the Joint Commissioner or Deputy Commissioner under Section 64(5) of the Act of 1959 is entitled to prefer appeal to the Commissioner against it under Section 69 of the Act of 1959. Further, an order passed in such appeal by the Commissioner under Section 69 of the Act of 1959 is subject to challenge by the aggrieved party in a suit instituted before the jurisdictional Civil Court under Section 70(1) of the Act of 1959 and further appeal under Section 70(2) of the Act of 1959 before the High Court. It cannot be gainsaid that the aforesaid provisions in the statute, which prescribe the manner in which a Scheme could be eventually modified or cancelled in a suit by the Civil Court and on appeal by the High Court, attracts the celebrated rule in Taylor -vs- Taylor [(1876) 1 Ch D 426] that has stood the test of time and has been quoted with approval by the Hon'ble Supreme Court of India in various decisions including in Ramchandra Keshav Adke -vs- Govind Joti Chavare [(1975) 1 SCC 559], that when a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performances are necessarily forbidden.
____________ https://www.mhc.tn.gov.in/judis Page of 27 of 32 W.A. Nos. 1218 and 1282 of 2021 and W.P. No. 6130 of 2021
14. In view of the foregoing discussion, it is held that the suit in O.S. No. 8 of 2016 filed before the Sub-Court, Chengalpattu, by the Appellant in W.A. No. 1218 of 2021, is barred by Section 108 of the Act of 1959, read with Section 9 of the CPC, on account of the remedy available for seeking the said relief in an application under Section 64(5) read with Section 118(2) of the Act of 1959. It is needless to add here that by virtue of the de facto doctrine, as highlighted by the Hon'ble Supreme Court of India in Gokaraju Rangaraju -vs- State of Andhra Pradesh [(1981) 3 SCC 132], the parties are not precluded from making use of the documents produced and the deposition of witnesses examined in that suit as evidence in proceedings under Section 64(5) of the Act of 1959 for modification or cancellation of the Scheme Decree, in the manner recognized by law.
15. Now what remains to be examined is the validity of the impugned order in W.P. No. 6130 of 2021, which is the Order Na.
Ka. No. 1753-2/2020-S1 dated 28.05.2020 passed by the ____________ https://www.mhc.tn.gov.in/judis Page of 28 of 32 W.A. Nos. 1218 and 1282 of 2021 and W.P. No. 6130 of 2021 Commissioner, and the correctness of the order dated 02.02.2021 in W.P. No. 1640 of 2021 passed by the Learned Single Judge of this Court for implementing it assailed in W.A. Nos. 1218 and 1282 of 2021.
16. Inasmuch as the said orders are absolutely based upon the Scheme Decree, which was existing at the time when they were passed, they cannot ipso facto be invalidated merely because the Appellants in W.A. Nos. 1218 and 1282 of 2021 intend to seek modification or cancellation of the Scheme Decree. In such circumstances, the proper course to be adopted to meet the ends of justice would be to keep the said orders in abeyance till 30.11.2023 so as to enable the said Appellants to apply for modification or cancellation of the Scheme Decree under Section 64(5) of the Act of 1959 by that time, and if such applications are made, the concerned authorities would have to await their outcome, depending upon which further course of action would follow in accordance with law.
It is needless to add here that if the said Appellants fail to take recourse to such procedure within that time limit, it shall become ____________ https://www.mhc.tn.gov.in/judis Page of 29 of 32 W.A. Nos. 1218 and 1282 of 2021 and W.P. No. 6130 of 2021 incumbent upon the concerned authorities to forthwith carry out the directions of the Writ Court in the order dated 02.02.2021 in W.P. No. 1640 of 2021 for implementing the Order Na. Ka. No. 1753-2/ 2020-S1 dated 28.05.2020 passed by the Commissioner and file report of compliance by 30.06.2024 before the Registrar (Judicial) of this Court.
In the upshot, the Appeals in W.A. Nos. 1218 and 1282 of 2021 and the Writ Petition in W.P. No. 6130 of 2021 are disposed on the aforesaid terms. No costs.
(S.V.G., CJ.) (P.D.A., J.)
09.11.2023
Maya
Index : Yes/No
NCS : Yes/No
____________
https://www.mhc.tn.gov.in/judis Page of 30 of 32 W.A. Nos. 1218 and 1282 of 2021 and W.P. No. 6130 of 2021 To
1. The Commissioner Hindu Religious and Charitable Endowments Department Uthamar Gandhi Road, Nungambakkam Chennai-600034.
2. The Assistant Commissioner Hindu Religious and Charitable Endowments Department Kanchipuram – 631502.
3. Executive Officer Arulmigu Sri Kandasamy Thirukoil Thiruporur Chengalpattu – 603110.
Copy to The Sub-Court Chengalpattu.
____________ https://www.mhc.tn.gov.in/judis Page of 31 of 32 W.A. Nos. 1218 and 1282 of 2021 and W.P. No. 6130 of 2021 THE HON'BLE CHIEF JUSTICE AND P.D.AUDIKESAVALU,J.
Maya W.A. Nos. 1218 and 1282 of 2021 and W.P. No. 6130 of 2021 Dated : 09.11.2023 ____________ https://www.mhc.tn.gov.in/judis Page of 32 of 32