Madras High Court
P. Raghupathi Naicker vs The Commissioner And Secretary To The ... on 18 October, 1995
Equivalent citations: (1996)1MLJ508, 1996 A I H C 3077, (1996) 1 MAD LJ 508
ORDER
1. Writ Appeal No. 575 of 1990has been filed against the Order of the learned single Judge dated 4.8.1989 made in W.P. No. 10441 of 1989, whereunder the learned single Judge has chosen to dismiss in limine, the writ petition filed by the appellant seeking for a writ of certiorari to call for and quash the proceedings of the first respondent Government in G.O.Rt. No. 381, dated 17.5.1989 rejecting the revision filed by the appellant on 22.7.1985 challenging the order of the second respondent herein in Pro.R.Dis. No. 45486/84 (L-), dated 11.10.1984 appointing an Executive Officer to Sri Kanniamman temple, Manapakkam Village, Chengalpattu District.
2. The temple in question was originally said to be founded by one Venkatachala Naicker, the great-grandfather of the appellant and from the year 1967 onwards the appellant claims to have come under the management as hereditary trustee on the death of his father Pravalavarna Naicker on 26.6.1962. Though the appellant has claimed that he is a hereditary trustee and the temple is his private temple, no such declaration under the provisions of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (hereinafter referred to as "1959 Act") has been obtained by him. On the other hand, the appellant claims that his father filed an application under Section 84 of the Madras Hindu Religious and Charitable Endowments Act, Act II of 1927 (hereinafter referred to as "Act II of 1927) in O.A. No. 98 of 1939 and the then Hindu Religious and Charitable Endowments Board was said to have held that the temple in question is an "excepted" temple. It is on that basis, the appellant claims throughout before the authorities below and before this Court that the respondents have no power to appoint ah Executive Officer for the temple in question. The learned single Judge repelled the claim of the appellant on the ground that under Section 45 of the 1959 Act, the Commissioner is empowered to appoint Executive Officer for any religious institution and even if a declaration has been obtained under Act II of 1927, that the temple is an "excepted" temple, that will not give any basis to project a claim that the temple is a private temple, unless the appellant moves the authorities under Section 63 of the 1959 Act to obtain a declaration to that effect. The learned single Judge was also of the view that if the temple has been declared to be an "excepted" temple under the provisions of Act II of 1927, it only meant and had the consequence that the trusteeship was hereditary and nothing more. It is seen from the order of the Government dated 17.5.1989. Which was the subject matter of challenge before the learned single Judge in the writ petition, that in view of the fact that there were serious irregularities in the administration of the affairs of the temple, of which some were also virtually accepted by the appellant himself in the enquiry conducted on 9.2.1984, the action of the second respondent Commissioner in appointing the Executive Officer is in the best interests of the administration of the affairs of the temple under Section 45(1) of the 1959 Act and is in accordance with law and no interference of the Government was called for in exercise of its revisional jurisdiction with the order of the Commissioner.
3. The above writ appeal was admitted on 28.8.1990 and the appellant did not appear to have taken effective steps to have the service on the respondents of the proceedings effectively completed. The matter was also listed before court on 9.12.1991 and when the matter was called, there was no representation on behalf of the appellant and consequently, their Lordships of the Division Bench, the then Acting Chief Justice (Nainar Sundaram, J.) and Somasundaram, J. ordered dismissal of the writ appeal for not taking steps to serve the respondents on 9.12.1991. Thereupon, the appellant has filed C.M.P. No. 13672 of 1993 to condone the delay of 568 days in filing the application for setting aside the order of dismissal of W.A. No. 575 of 1990 and CMP. S.R. No. 51465 of 1993 to set aside the order of dismissal. When the above application for condonation of delay came up for hearing, learned Counsel for the respondents vehemently opposed the same on the ground that no sufficient, proper or valid reasons have been set out to justify the condonation sought for of the said long delay. Having regard to the long lapse of time and inordinate delay involved in filing the application for setting aside the order of dismissal of the appeal, we direct the learned Counsel for the appellant petitioner to make submissions on the merits of the claim and the issues raised to see as to whether the interests of justice will be substantially prejudiced if the delay is not condoned as prayed for.
4. The relevant factual background which led to the filing of the appeal has already been set out above. As could be seen from the above the sheet-anchor of the claim on behalf of the appellant was based on the declaration said to have been obtained by the father of the appellant under the provisions of Act II of 1927 that the temple in question is an "excepted" temple to substantiate the claim that it is a private temple. In the decision in T.V. Bashyakar and three Ors. v. The Madras Hindu Religious Endowments Board by its President and five Ors. I.L.R. 1941 Mad. 559, it was held that in deciding whether or not a temple is an excepted temple under the provisions of Act II of 1927, relevant consideration and regard is only to the mode of succession in the trusteeship during the period immediately preceding the Religious Endowments Board. It is obvious, therefore, that the question relating to the character of the temple as to whether it is to be considered as a private temple could not be said, to be the subject-matter of consideration in dealing with a claim as to whether the temple is an excepted temple under the Madras Hindu Religious and Charitable Endowments Act II of 1927. As a matter of fact in Clause (5) of Section 9, excepted temple was defined to mean and include a temple, the right of succession to the office of the trustee or the offices of all the trustees (where there are more than one) whereof has been hereditary or the succession to the trusteeship whereof has been specially provided for by the founder. In H.R.E. Board, Madras v. Ratnasami I.L.R. 1937 Mad. 504, a Full Bench of this Court has held that there is nothing like a recognised legal right or category of right known to general jurisprudence that is connected by the expression "excepted temple" and it was merely because of grouping of temples in one manner of a particular stage of legislation and in a different manner at a later stage of legislation. The provisions of the Madras Hindu Religious and Charitable Endowments Act, 1951 or 1959 Act did not recognise any category of temple as an "excepted" temple with any special rights or status and. at any rate did not recognise the position with a declaration obtained by any one in respect of a temple of a being "excepted" temple to be entitled to be claimed as a private temple. Such right could be claimed or recognised or sustained in law only if there was any specific declaration to that effect by any competent civil court or by the statutory authorities designated for the purpose under Section 63 of 1959 Act or under Section 57 of 1951 Act.
5. In the present case, there was no such declaration and the legal position set out by the learned single Judge as a ground for rejecting the writ petition in limine therefore, does not suffer from any patent error of law warranting interference by this Court. In view of the above, we do not see any substantial merit or worth in the plea or contentions raised in the above writ appeal.
6. For all the reasons stated above, we do not find any merit whatever in the application filed for seeking for condonation in C.M.P. No. 13672 of 1993 or the application filed for setting aside the order of dismissal of the appeal for non-prosecution in C.M.P. SR. No. 51465 of 1993. The reasons assigned in the affidavits filed in support of the above applications are too general and vague and do not furnish sufficient or genuine reasons for condoning such a long and inordinate delay. In any event, since we have heard the main appeal itself on merits, we condone the delay and while setting aside the order of dismissal dated 9.12.1991, we dismiss the writ appeal itself on merits for the reasons set out supra. There will be no order as to costs.