Madras High Court
S.Kathiresan Poosari vs The Secretary To Government on 3 December, 2015
Author: R.Subbiah
Bench: R.Subbiah
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 03.12.2015
CORAM
THE HONOURABLE MR. JUSTICE R.SUBBIAH
Writ Petition (MD) No.17450 of 2015
and
Rev.Appln.(MD)No.43 of 2015
W.P.(MD) No.17450 of 2015:
1.S.Kathiresan Poosari
2.S.Ramar Poosari
3.R.Ariram Poosari
4.V.R.M.Jeyaraman Poosari
5.L.Muthuraman Poosari
6.V.R.M.Ganesan Poosari
7.V.R.M.Jothi Ananda Ganesan Poosari
8.S.S.Murugan @ Sarkarai Poosari
9.T.Kathiresan Poosari
10.T.Muthuraman Poosari
11.T.Balasubramanian Poosari
12.T.Ramachandran Poosari
13.T.Marimuthu Poosari ... Petitioners
vs.
1.The Secretary to Government,
Hindu Religious and Charitable
Endowments Department,
Fort St. George, Chennai.
2.The Commissioner,
Hindu Religious and Charitable
Endowments Department,
Nungambakkam High Road,
Chennai-24.
3.The Joint Commissioner,
Hindu Religious and Charitable
Endowments Department,
Sivagangai.
4.The Assistant Commissioner /
Executive Officer,
Arulmighu Irukkankudi Mariyamman
Thirukovil,
Irukkankudi, Sattur Taluk,
Virudhunagar District.
5.S.R.M.Ramamurthi Poosari
6.S.A.Rajendran Poosari
7.M.Navarathinam ... Respondents
(R.7 impleaded vide order dated
13.10.2015 in M.P.(MD) No.
3 of 2015)
Rev.Appln.(MD)No.43 of 2015:
1.The Secretary to Government,
Hindu Religious and Charitable
Endowments Department,
Fort St. George, Chennai.
2.The Commissioner,
Hindu Religious and Charitable
Endowments Department,
Nungambakkam High Road,
Chennai-24.
3.The Joint Commissioner,
Hindu Religious and Charitable
Endowments Department,
Sivagangai. ... Petitioners
vs.
1.S.A.Rajendran Poosari
2.S.R.M.Ramamurthi Poosari ... Respondents
Writ petition No.17450 of 2015 has been filed under Article 226
of the Constitution of India, praying for a Writ of certiorarified mandamus
to call for the records relating to the impugned order No.Se.Mu.Na.Ka.No.
8/2015 A4 dated 21.9.2015 on the file of the fifth respondent and quash the
same on the ground that the same is arbitrary, illegal and without
jurisdiction and consequently, directing the respondents not to proceed
further pursuant to the orders in W.P. (M.D.) No.15653 of 2015 dated
31.8.2015 on the file of this Court.
Rev.Appln.(MD) No.53 of 2015 has been filed as against the order
dated 31.8.2015 in W.P.(MD) No.15653 of 2015.
W.P.(MD) No.17450 of 2015:
!For Petitioners : Mr.M.Vallinayagam, SC
for Mr.S.Muthalraj
^For Respondents : Mr.V.R.Shanmuganathan,
Spl.Govt.Pleader,
for R.1 to R.3
Mr.P.Mahendran,
for R.4
Mr.M.Michael Barathi,
for R.5
Mr.Alagarsamy, SC
for Mr.S.D.Ramalingam,
for R.6
Mr.N.Dilipkumar,
for R.7
Rev.Appln. (MD) No.43 of 2015:
For Petitioners : Mr.V.R.Shanmuganathan,
Spl.Govt.Pleader.
For Respondents : Mr.Alagarsamy, SC
for Mr.S.D.Ramalingam,
for R.1
Mr.N.Dilipkumar,
for R.2
:COMMON ORDER
The present writ petition has been filed by the petitioners challenging the impugned order of the fifth respondent dated 21.9.2015 on the ground that the same is arbitrary, illegal and without jurisdiction and consequently, to direct the respondents not to proceed further pursuant to the orders in W.P. (MD) No.15653 of 2015 dated 31.8.2015 on the file of this Court.
2. The review application in Rev.Appln.(MD)No.43 of 2015 has been filed as against the order dated 31.8.2015 made in W.P.(MD) No.15653 of 2015.
3. Since the issues involved in the writ petition as well as in the review application are inter-related with each other and the parties are one and the same, they are decided by way of a common order.
4. For the sake of convenience, the parties will be referred to as per their ranking in the writ petition.
5. The petitioners 1 to 3 are Hereditary Trustees and Poosaries and other petitioners and respondents 5 to 7 are Hereditary Poosaries of Arulmighu Irukkankudi Mariyamman Thirukovil, Irukkankudi, Sattur Taluk, Virudhunagar District. The 5th respondent is the present Chairman of Board of Trustees. Except the 5th respondent, other Poosaries, viz., petitioners 1 to 13 as well as respondents 6 and 7 are the family members of the Branch of one Jothiyan Poosari. The 5th respondent belongs to a different branch.
6. Now, the brief facts which are necessary to decide the issues involved in both the writ petition as well as review application, in nutshell, are as follows:-
(a) The petitioners in the writ petition, are the Hereditary Poosaries of Arulmighu Irukkankudi Mariyamman Thirukovil at Irukkankudi, Sattur Taluk, Virudhunagar District. Originally, the said temple was founded by one late Ramasamy Poosari and the same is in existence for several years before 1801.
By Board's order No.26 dated 16.8.1926, the temple is governed by the Scheme and the said Scheme was framed for administration of the temple on 4.5.1935. As per the said Scheme, the temple and its properties shall be administered and managed by the Hereditary Trustees. Even as per the Scheme, a Manager is provided to assist the Hereditary Trustees.
(b) The duties of the Manager in the Scheme are administered by the Executive Officer in the cadre of Assistant Commissioner. The Government passed an order on 29.10.1991 appointing an Executive Officer to the temple on the basis of the income. The said temple was classified under clause (iii) of Section 46 of the H.R. & C.E. Act, 1959.
(c) The petitioners' forefather viz., Ramasamy Poosari administered the temple and performed the Pooja functions. After the demise of the said Ramasamy Poosari, his three sons viz., Mookkan Poosari, Muthuraman Poosari and Jothiyan Poosari became the Hereditary Trustees and Hereditary Poosaries of the temple and they divided the pooja services of a year into four months to each branch. The present Hereditary Trustees and Hereditary Poosaries have expanded from the said family tree and the petitioners and the sixth respondent are from the branch of Jothiyan Poosari. The branch of Jothiyan Poosari has four pangalis viz., Vellaichamy @ Ramasamy Poosari, Sangaiah Poosari, Subbiah Poosari and Arunachalam Poosari. Now, they are dividing every month into four weeks and each of them is performing the Kaingariam every week. But, Friday is the common day for all the four pangalis throughout the month.
(d) In these situation, the sixth respondent submitted a representation dated 21.7.2015 to the fifth respondent viz., S.R.M.Ramamurthi Poosari, the Chairman, Board of Trustees, to change the existing system in the ?Pooja Murai?. Since the said representation was not considered by the fifth respondent, the sixth respondent filed a writ petition in W.P.(MD) No.15653 of 2015 as against the respondents 1 to 3 and 5. But, the petitioners herein were not shown as parties in the said writ petition. When the said writ petition came up for hearing on 31.8.2015, this Court, after hearing both sides, passed an order directing the fifth respondent to consider the representation of the petitioner dated 21.7.2015 and pass appropriate orders on merits and in accordance with law, within a period of three weeks from the date of receipt of a copy of that order. Pursuant to the said direction given by this Court, the fifth respondent issued a notice dated 21.9.2015 to the petitioners, who belonged to the branch of Jothian Poosari, by directing them to appear for enquiry. Challenging the said notice, the petitioners filed the present writ petition in W.P.(MD) No.17450 of 2015, mainly questioning the jurisdiction of the fifth respondent, the Chairman, Board of Trustees, to conduct an enquiry with regard to change of existing system in Pooja Murai.
(e) Since notice was issued by the fifth respondent pursuant to the direction given by this Court in W.P. (MD) No.15653 of 2015, the official respondents in the said writ petition, have also filed a review application in Rev.Appln. (MD) No.43 of 2015 to review the order passed in the said writ petition directing the fifth respondent to conduct an enquiry on the representation made by the sixth respondent.
7. In W.P.(MD)No.17450 of 2015, the fourth respondent - the Assistant Commissioner / Executive Officer, Arulmighu Irukkankudi Mariyamman Thirukovil, the fifth respondent - S.R.M.Ramamurthi Poosari, the Chairman, Board of Trustees and the sixth respondent - S.A.Rajendran Poosari have filed separate counter affidavits.
8. In the counter affidavit filed by the fourth respondent, it has been stated as follows:-
(a) The temple was being administered under the control of H.R. & C.E. Department vide Board's Order No.26 dated 16.8.1926 and the said temple is governed by a Scheme. The Scheme was framed by Board's Order No.1000 dated 4.5.1935. As per the said Scheme, the temple and its properties shall have to be administered and managed by Hereditary Trustees and a Manager shall also be provided to assist the Hereditary Trustees. As far as the administration of the temple is concerned, it is managed by the Board of Trustees of the temple as well as by the H.R. & C.E. Department. In fact, on 31.5.1955, the Scheme of administration of the temple was modified and thereby an Executive Officer has been appointed by the authority for the duty of administering the temple administration and the maintenance of accounts.
On 29.10.1991, the Executive Officer post was upgraded under Section 46 of the Act and hence, the Assistant Commissioner has been appointed as Executive Officer of the temple. Now, the Assistant Commissioner / Executive Officer as well as the Board of Trustees have been administering the affairs of the temple as well as accounts of the temple.
(b) The Trustees themselves perform poojas and accordingly, they act as Poosaries of the temple and it is only the Chairman, Board of Trustees and Assistant Commissioner / Executive Officer, who are managing the day to day administration and looking after the affairs of the temple.
(c) In W.P. (MD) No.15653 of 2015 filed by the sixth respondent, the Assistant Commissioner/Executive Commissioner who is the fourth respondent was not added as a party, though the fourth respondent is administering the affairs of the temple. In fact, in the year 1982, the sixth respondent S.A.Rajendran Poosari and one Seenisamy Poosari and Sangaiah Poosari filed a suit in O.S.No.437 of 1982 on the file of the learned District Munsif, Sattur for a decree in their favour by dividing the 1/3rd share of emoluments of late Jothiyan Poosari separately by allotting one clear month in a cycle of one year to each pangali of Jothiyan Poosari's branch. The said suit was dismissed by the trial Court. Now, the sixth respondent again raised a plea for ?Pooja Murai? of the temple by submitting a representation to the fifth respondent. Since the dispute was already decided in the suit in O.S.No.437 of 1982 by the District Munsif, Sattur vide judgment dated 7.3.1985, now the said dispute has to be decided only by the competent authority as contemplated under the provisions of the H.R. & C.E. Act. Thus, he sought for dismissal of the writ petition.
9. In the counter affidavit filed by the fifth respondent, inter alia it has been stated that the fifth respondent is neither a party to the dispute between the petitioners and the sixth respondent nor a person having any interest in the said dispute. In fact, the petitioners have not disputed the right conferred on the Chairman, Board of Trustees under Sections 55 and 56 of the Act. The sixth respondent as well as the petitioners have given representations dated 21.7.2015 and 5.8.2015 respectively to the fifth respondent, who, as Chairman of Board of Trustees is bound to resolve the dispute even prior to the direction given by this Court. When the enquiry was started as per the direction of this Court, the petitioners appeared before the fifth respondent and they sought for adjournment for filing their objections and also sought for some documents from the fifth respondent. So, when once the petitioners submitted themselves to the jurisdiction of the Hereditary Trustee for enquiry by their representation dated 5.8.2015 and made their appearance without raising any preliminary objection, they cannot now deny the jurisdiction of the fifth respondent and they are deemed to have waived their right of choosing the forum. The quashment sought against the reply cum notice of enquiry by the fifth respondent is not an order to be challenged and as such, the petitioners are not entitled to invoke the jurisdiction of this Court. Thus, the fifth respondent has sought for dismissal of the writ petition.
10. In the counter affidavit filed by the sixth respondent, it has been stated that the petitioners themselves have participated in the enquiry in person and also submitted their representation dated 15.9.2015 to the fifth respondent in which they have specifically pleaded to conduct enquiry after providing necessary requested documents. Thus, they have submitted themselves to the jurisdiction of the fifth respondent for holding the enquiry as per the direction given by this Court dated 31.8.2015 in W.P. (MD) No.15653 of 2015. If the present writ petition is allowed as prayed for, the earlier order pursuant to which the notice is issued, would be rendered ineffective and therefore, it would become a nullity. Such order passed earlier, cannot be challenged in a collateral proceeding. If the petitioners feel aggrieved by the order passed by this Court in W.P. (MD) No.15653 of 2015 dated 31.8.2015, they ought to have filed an appeal against the order, not to initiate collateral proceeding. Section 63(e) of the H.R. & C.E. Act has no application to the facts of the present case. As per Sections 55, 56 and 57 of the H.R. & C.E. Act, the Trustees being the appointing and disciplinary authorities for poosaries, are empowered to regulate and administer the temple under the scheme. Hence, the fifth respondent has jurisdiction to regulate the work of Poosaries as per law. Thus, he sought for dismissal of the writ petition.
11. The learned senior counsel appearing for the petitioners submitted that Arulmighu Irukkankudi Mariyamman Thirukovil was formed by one Late Ramasamy Poosari. The said temple has been in existence for several years before 1801. The said Ramasamy Poosari had three sons, namely, Mookkan Poosari, Muthuraman Poosari and Jothiyan Poosari. They, among themselves, divided Pooja services of a year into four months to each branch. Subsequently, the respective branches got expanded from the said family. Now the petitioners and 6th respondent are from the branch of Jothiyan Poosari. The branch of Jothiyan Poosari has four pangalis, viz., Vellaichamy @ Ramasamy Poosari, Sangaiah Poosari, Subbiah Poosari and Arunachalam Poosari. Since the branch got expanded, now they are dividing every month into four weeks and each of them is performing ?Kaingariam? every week. However, every Friday is the common day for all the four pangalis, who will do ?Kaingariam? commonly. In this situation, the 6th respondent who belongs to Jothiyan Poosari made a representation on 21.7.2015 to the Chairman of Board of Trustees, the 5th respondent herein to change the existing system in the ?Pooja Murai? by allotting one full week for each of the pangalis including Fridays, which day is presently common day for all the four pangalis. According to the learned senior counsel for the petitioners, since the 5th respondent being one of the hereditary trustees and Pangalis from other branch, he has no jurisdiction to decide the issue with regard to change in the existing system of ?Pooja Murai?. In other words, the 5th respondent is on par with other Hereditary trustees, he cannot sit as a Judge for his own cause. The learned senior counsel also submitted that in the year 1982, when a similar situation arose, the sixth respondent along with other pangalis, filed a civil suit in O.S.No.437 of 1982 on the file of the learned District Munsif, Sattur praying for a judgment and decree in their favour by dividing 1/3rd share of emoluments of late Jothiyan Poosari separately by allotting one clear month in a cycle of one year to each Pangali of Jothiyan Poosari's branch. But the said suit came to be dismissed by the learned District Munsif, Sattur. While dismissing the said suit, the learned District Munsif has observed that the plaintiffs in that suit have to seek their remedy only before the Joint Commissioner under Section 65(1) of the H.R. & C.E.Act. As against the said judgment, no appeal was filed either by the 6th respondent or other plaintiffs in the above said suit. When that being so, now with regard to change in the ?Pooja Murai? the 6th respondent ought to have approached the authorities under the H.R.& C.E.Act. The learned senior counsel also invited the attention of this Court to Section 63(e) of the H.R. & C.E.Act and submitted that if the present system of Pooja Murai among four Pangalis has to be changed, the jurisdiction is vested only with the H.R. & C.E. Authorities and not with the 5th respondent.
12. Countering the submissions made by the learned senior counsel appearing for the petitioners, the learned senior counsel appearing for the 6th respondent has replied that Section 63(e) of H.R.& C.E.Act has no application to the facts of the present case. In this regard, he has also relied upon the judgment reported in 2001-3-L.W.459 - Jagannathan C.A. v. T.E.Srinivasan Arulmighu Devarajaswamy Devasthanam and etc. and submitted that in the said judgment, it was explained that Section 63(e) consists of two parts, on that established usage referred to in the said parts, it has nothing to do with entitlement usage relating to emoluments or perquisite. In any other case such emoluments or perquisite cannot form part of Section 63(e) as held in the said judgment. Thus, the learned senior counsel submitted that section 63(e) will not apply to the present case since there is no dispute with regard to the entitlement of custom or otherwise to any honour, emolument or perquisite in any religious institution that is involved. Thus, he sought for the dismissal of the writ petition.
13. Apart from the above reply, the learned senior counsel appearing for the 6th respondent submitted that only pursuant to the direction given by this Court in a writ petition filed by the 6th respondent in W.P.(MD) No.15653 of 2015, dated 31.08.2015, the 5th respondent had issued notice to the petitioners to appear for enquiry. Pursuant to the said notice, the petitioners themselves have participated in the enquiry in person and also submitted their representation dated 15.9.2015 to the fifth respondent, in which they have specifically pleaded to conduct enquiry after providing necessary requested documents. Thus, they have submitted themselves to the jurisdiction of the fifth respondent for holding an enquiry as per the direction given by this Court. Therefore, now, they cannot challenge the impugned notice issued by the fifth respondent. Learned senior counsel has also invited the attention of this Court to the various orders passed by the Chairman, Board of Trustees on earlier occasions and submitted that the Chairman, Board of Trustees is the competent person to deal with the issue and pass orders. Therefore, now the petitioners cannot say that the fifth respondent is not a competent person to deal with the issue. Thus, he contended that the petitioners having approached the 5th respondent on various earlier occasions, now cannot turn back and contend that the 5th respondent has no jurisdiction to consider the representation of the 6th respondent with regard to change of ?Pooja Murai?.
14. By way of reply, the learned senior counsel appearing for the petitioners submitted that it is incorrect to state that the petitioners by appearing before the 5th respondent submitted themselves to the jurisdiction of the 5th respondent to conduct enquiry. Since the 5th respondent has no jurisdiction to entertain the petition and even if the petitioners appear before the 5th respondent it would not amount to submitting themselves to the jurisdiction of the 5th respondent. Further with regard the reference made by the learned senior counsel for the 6th respondent in respect of various earlier orders passed by the 5th respondent, the learned senior counsel for the petitioners would submit that those earlier orders were passed by the 5th respondent only in respect of disciplinary proceedings initiated against the Poojaries and not with regard to change of ?Pooja Murai? and thus, he contended that the 6th respondent cannot take advantage of those earlier orders passed by the 5th respondent.
15 (A). The learned Special Government Pleader appearing for the respondents 1 to 3 has also made detailed arguments on behalf of the official respondents. During the course of his submissions, he had invited the attention of this Court to Rule 1(2) of the Tamil Nadu Hindu Religious Institutions (Officers and Servants) Service Rules, 1964, which gives a list of servants of religious institutions. In the said list, Poosari / Gurukkal was mentioned as Indoor Servants in Sl.No.70. The Rule 2(e) of the said Rules defines about the term of 'Indoor servant'. of Tamil Nadu Hindu Religious Institutions. By referring the said rules, the learned Special Government Pleader submitted that a conjoint reading of aforesaid provisions would reveal that a Poosari, who holds the office in the religious institutions and who is remunerated out of the funds of the religious institutions, is a servant governed by the Tamil Nadu Hindu Religious Institutions (Officers and Servants) Service Rules, 1964. Thus, he submitted that the petitioners who are the Hereditary Poosaries of the temple are the servants covered by the Tamil Nadu Religious Institutions (Officers and Servants) Service Rules, 1964.
(B) Further, the learned Special Government Pleader appearing for the respondents 1 to 3 invited the attention of this Court to Section 56 of the H.R. & C.E. Act, which contemplates that such servants shall be controlled by the Board of Trustees and Board of Trustees is entitled to proceed against such servant / Poosari for breach of trust, incapacity, disobedience of orders, negligence of duty, misconduct or other sufficient cause. Further, he has invited the attention of this Court to Section 57, which contemplates that the Board of Trustees is having power to fix the fees for such servants / Poosaries for performance of their service. Hence, the Poosaries of the present temple can very well be regulated, controlled and supervised by the persons in administration of the temple viz., Board of Trustees and Executive Officer in the present case. If the parties dispute the entitlement of custom or otherwise, to any honour, emolument or perquisite in any religious institution, they have to work out their remedy with the Joint Commissioner under Section 63(e) of the H.R. & C.E. Act. If the dispute between the parties is not an entitlement, but only on such working of entitlement, it can very well be regulated and monitored and controlled by the persons in the administration itself. Thus, the learned Special Government Pleader submitted that in the event if this Court comes to the conclusion that the 5th respondent is having jurisdiction to decide the issue, a direction may be given to the 5th respondent to conduct an enquiry in the presence of the Executive Officer of the temple, since he is also managing and administering the day to day affairs of the temple along with the Chairman of Board of Trustees.
(C) Further, the learned Special Government Pleader appearing for the respondents 1 to 3 submitted that since the earlier order was obtained by the sixth respondent in W.P. (MD) No.15653 of 2015 without impleading the Executive Officer of the temple, the same is liable to be reviewed now.
(D) Further, the learned Special Government Pleader appearing for the respondents 1 to 3 by relying upon the judgment of the Hon'ble Supreme Court reported in (2009) 14 Supreme Court Cases 663 - Inderchand Jain (Dead) through Lrs. v. Motilal (dead) through Lrs., submitted that the power of review can be exercised for any sufficient reason. Thus, he sought to review the order of this Court dated 31.8.2015 passed in W.P.(MD) No.15653 of 2015.
16. But the suggestion put forth by the learned Special Government Pleader to conduct the enquiry by the 5th respondent in the presence of the Executive Officer of the temple, was opposed by the learned senior counsel for 6th respondent, stating that the Executive Officer of the temple was not appointed within the meaning of Section 45 of the H.R. & C.E. Act. Under the Scheme, originally a Manager was looking after the day to day affairs of the temple. Later, in the place of Manager, an Executive Officer was appointed in the cadre of Assistant commissioner since the income of the temple is more than Rs.10 lakhs. Since the Executive Officer was not appointed within the meaning of Section 45 of the H.R. & C.E. Act, there is no need for the presence of the Executive Officer, during the course of enquiry by the Chairman, Board of Trustees, who is the fifth respondent herein.
17. Learned counsel appearing for the fourth respondent made a detailed argument to the effect that the dispute cannot be decided by the fifth respondent. Thus, he sought for the dismissal of the writ petition.
18. Learned counsel appearing for the seventh respondent has also made his submission.
19. I have heard the submissions made by the learned counsels for the respective parties.
20. Though very many contentions have been raised by the respective parties on factual aspects, the main points that have to be decided in this writ petition are as follows:-
(i) Whether the fifth respondent - Chairman, Board of Trustees has jurisdiction to conduct enquiry on the representation made by the sixth respondent with regard to change of Pooja Murai ?
(ii) If the present writ petition is allowed, whether it would nullify the order dated 31.8.2015 made in W.P.(MD) No.15653 of 2015 ?
(iii) Since the petitioners had appeared before the fifth respondent pursuant to the notice dated 9.9.2015, whether it amounts to submitting themselves to the jurisdiction of the fifth respondent ?
21. With regard to the first point about the jurisdiction of the fifth respondent to decide the issue relating to Pooja Murai, it is the main submission of the learned senior counsel appearing for the petitioners that the fifth respondent - Chairman, Board of Trustees is also one of the Hereditary Trustees and Poosaries of the temple. Therefore, he cannot decide the issue with regard to change of ?Pooja Murai? among the other Trustees and Poosaries. According to the learned senior counsel for the petitioners, the competent person to decide the said issue is only the Assistant Commissioner, H.R. & C.E. Department. But I find that the present dispute with regard to ?Pooja Murai? is only between the family members belonging to the branch of Jothiyan Poosari. The present Chairman, Board of Trustees is not from the branch of Jothiyan Poosari and he is from the other branch. As of now, the four pangalis of Jothiyan Poosari branch viz., Vellaichamy @ Ramasamy Poosari, Sangaiah Poosari, Subbiah Poosari and Arunachalam Poosar are dividing every month into four weeks and each of them is performing the Kaingaryam every week. But, Friday is the common day for all four pangalis throughout the month. Now, the sixth respondent wants to make a change in the said system by keeping the whole week for a particular pangali including Friday and the sixth respondent does not want the Friday to be a common day for all the four pangalis. Therefore, in my considered opinion, it is only a regulation in the system, which is already in existence.
22. According to the learned senior counsel appearing for the petitioners, the sixth respondent S.A.Rajendran Poosari and one Seenisamy Poosari and Sangaiah Poosari filed a suit in O.S.No.437 of 1982 on the file of the learned District Munsif, Sattur for a decree in their favour by dividing the 1/3rd share of emoluments of late Jothiyan Poosari separately by allotting one clear month in a cycle of one year to each pangali of Jothiyan Poosari's branch and the said suit was dismissed by the trial Court. Hence, according to the lerned counsel for the petitioners, since the dispute was already decided in the suit, now the said dispute has to be decided only by the competent authority as contemplated under the provisions of the H.R. & C.E. Act. But, on a perusal of the said judgment, I find that in the said judgment, the scope of Section 63(e) has not been analysed by the learned District Munsif in detail. Therefore, I am not inclined to accept the said submission made by the learned senior counsel appearing for the petitioners based on the observation made in the said judgment.
23. Learned senior counsel appearing for the sixth respondent submitted that Section 63(e) has no application to the facts of the present case. In this regard, he has also relied upon the judgment reported in 2001- 3-L.W.459 - Jagannathan C.A. v. T.E.Srinivasan Arulmighu Devarajaswamy Devasthanam and etc. The relevant portion in the said judgment is usefully extracted hereunder:-
" 9. If at all any sub-section of Section 63 applies, it can only be
(e) and therefore, we will examine only Section 63(e). This sub-section relates to two kinds of disputes, one is whether either by custom or otherwise a person is entitled to any honour, emolument or perquisite in any religious institution and the other is what is the established usage of a religious institution in regard to any other matter. Should the second half of the sub-section be read along with the first half so as to deal with the established usage of the institution in relation to entitlement of any person to any honour, emolument or perquisite ? I think not. One reason for this is, the first half of the sub-section is separated by a semicolon. Therefore, the second half must be read disjunctively. The section itself makes it clear that the words 'established usage' are not with relation to a person's honour, emolument or perquisite, because it says that it is in relation to any other matter. Therefore, the only construction possible is that Section 63(e) gives the Deputy Commissioner the power to examine whether there is any established usage prevalent in the religious institution relating to any matter other than right to honour etc. If a dispute arises whether a certain issue must be decided in one manner because of established usage, he has to decide whether such an usage exists and whether it is an established usage of the religious institution. ... "
24. A reading of the said judgment would show that Section 63(e) consists of two parts. The first part of Section 63(e) deals as to whether, either by custom or otherwise, a person is entitled to any honour, emolument or perquisite in any religious institution. With regard to the second part, it deals about what is the established usage of a religious institution in regard to any other matter. Hence, if there is any dispute with regard to the entitlement about the custom or honour, emolument or perquisite, the same will fall within of the scope of section 63(e). So far as the present case is concerned, the issue is not with regard to the entitlement of any custom or honour, emolument or perquisite, because the sixth respondent is not claiming any new right. Already, all the Poosaries are entitled to conduct Kaingaryam. Now, the sixth respondent wants to regulate the system. Therefore, in my considered opinion, if the entitlement of the parties with regard to Pooja Murai and sharing of income is under dispute and if the same is claimed by any custom or established usage or otherwise, then the parties have to work out their remedy by filing an appropriate application under Section 63(e) of the H.R. & C.E. Act. In the present case, as contended earlier, the sixth respondent is not claiming any new right and he is only seeking to regulate the system, which is already in existence, by allotting the whole week for a particular pangali. Therefore, in my considered opinion, since the sixth respondent wants to regulate the system, which is already in existence, the issue will fall out of the scope of Section 63(e) and as such, the fifth respondent - Chairman, Board of Trustees himself can decide the said issue. Further, from the reading of Section 56 of HR & CE Act, it could be seen that the Board of Trustees is entitled to proceed against servant/Poosari for breach of trust, incapacity, disobedience of orders, negligence of duty, misconduct or other sufficient cause. Similarly, under Section 57 of the HR & CE Act, the Board of Trustees is having power to fix fee for the performance of any service, ritual or ceremony in such religious institution and to determine what portion, if any, of such fees shall be paid to the archakas or other office holders or servants of such religious institution. When that being so, if the dispute between the parties is not entitlement but only on such working of entitlement, it can very well be regulated and monitored by the person in view of Sections 56 and 57 of the HR and CE Act read with the Tamil Nadu Hindu Religious Institutions (Officers and Servants) Service Rules, 1964.
25. With regard to next point, the submission made by the learned senior counsel appearing for the sixth respondent is that the enquiry notice was issued only pursuant to the direction of this Court dated 31.8.2015 in W.P. (MD) No.15653 of 2015 and if the petitioners are aggrieved by the said order, they ought to have filed an appeal by obtaining leave from the Division Bench and they cannot challenge the said notice issued by the fifth respondent by way of the present writ petition. According to him, if the writ petition is allowed, it would nullify the order passed by this Court in W.P.(MD) No.15653 of 2015 dated 31.8.2015 and the same is not permissible in the collateral proceeding. In this regard, he has also relied upon the judgment reported in 1999 (8) SCC 737 - Manohar M.Galani v. Ashok N.Advani & Anr. A perusal of the said judgment would clearly show that if the said writ petition is allowed as prayed for, the earlier order pursuant to which the notice is issued, would be rendered ineffective and therefore, it would become nullity. Such order passed earlier, cannot be challenged in a collateral proceeding. If the petitioners feel aggrieved by the order passed by this Court dated 31.8.2015 in W.P. (MD) No.15653 of 2015, they ought to have challenged the said order by filing a writ appeal by obtaining leave of the Division Bench since they were not parties in the said writ petition. Therefore, on that ground also, the writ petition is liable to be dismissed.
26. So far as the third point is concerned, since this Court has already come to the conclusion that the fifth respondent - Chairman, Board of Trustees has jurisdiction to decide the issue with regard to change of Pooja Murai, I am of the opinion, the petitioners by submitting themselves to the jurisdiction of the fifth respondent, now cannot go back and say that the fifth respondent has no power to decide the issue. Though the learned Special Government Pleader appearing for the respondents 1 to 3 submitted that enquiry could be conducted by the fifth respondent in the presence of the Joint Commissioner, in my considered opinion, the Joint Commissioner has not been appointed as per Section 45 of the H.R. & C.E. Act. As per the original Scheme, there was a Manager. Later, in the place of Manager, an Executive Officer was appointed in the cadre of Assistant Commissioner by taking note of the income of the temple. Therefore, in my considered opinion, the presence of the Assistant Commissioner is not necessary during the course of enquiry by the fifth respondent, especially when this Court has come to the conclusion that the fifth respondent/Chairman of Board of Trustees is the competent person to deal with the issue raised in this writ petition, namely, regulating ?Pooja Murai? among the petitioners and respondents 5 to 7/Hereditary Poosaries.
27. For all the reasons stated above, I am of the opinion, the petitioners are not entitled to the relief as prayed for in the writ petition and the writ petition is liable to be dismissed.
28. In fine, the writ petition in W.P. (MD) No.17450 of 2015 is dismissed. No costs.
29. Consequently, the review application in Rev.Appln. (MD) No.43 of 2015 is also dismissed.
To
1.The Secretary to Government, Hindu Religious and Charitable Endowments Department, Fort St. George, Chennai.
2.The Commissioner, Hindu Religious and Charitable Endowments Department, Nungambakkam High Road, Chennai-24.
3.The Joint Commissioner, Hindu Religious and Charitable Endowments Department, Sivagangai.
4.The Assistant Commissioner / Executive Officer, Arulmighu Irukkankudi Mariyamman Thirukovil, Irukkankudi, Sattur Taluk, Virudhunagar District..