Madras High Court
S.Nambirajan vs The Joint Commissioner on 21 January, 2022
Author: M.Sundar
Bench: M.Sundar
W.P.(MD)No.3136 of 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 21.01.2022
CORAM:
THE HONOURABLE MR.JUSTICE M.SUNDAR
W.P.(MD)No.3136 of 2016
and
W.M.P.(MD)Nos.2751 & 10731 of 2016
S.Nambirajan ... Petitioner
Vs.
1.The Joint Commissioner,
Hindu Religious & Charitable Endowments Department,
Tirunelveli.
2.The Assistant Commissioner,
Hindu Religious & Charitable Endowments Department,
Tirunelveli.
3.The Executive Officer,
Arulmigu Subramaniyasamy Temple,
Valliyoor,
Tirunelveli District. ... Respondents
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https://www.mhc.tn.gov.in/judis
W.P.(MD)No.3136 of 2016
PRAYER: Writ Petition filed under Article 226 of the Constitution
of India for issuance of Writ of Certiorari, calling for the records of
the impugned order of the third respondent dated 03.02.2016 and
quash the same.
For Petitioner : Mr.R.R.Kannan
For Respondents 1&2 : Mr.M.Lingadurai
Special Government Pleader
For Respondent No.3 : Mr.C.Mayilvahana Rajendran
ORDER
*********** In less than one month from today captioned main writ petition will turn seven in this Court. To put it differently and to state with specificity captioned writ petition was filed in this Court on 11.02.2016 and it has been pending for well over half a decade [nearly 7 years]. At the time of inception of the writ petition an interim order ie., an order of interim stay has been granted by this Court vide captioned W.M.P.(MD)No.2751 of 2016 and this order reads as follows:
'Mr.V.Muruganantham, AGP takes notice for R1 & R2.
Mr.Mayilvahana Rajendran, learned Counsel takes notice for R3.
2/28 https://www.mhc.tn.gov.in/judis W.P.(MD)No.3136 of 2016 There shall be an order of interim stay for a period of two weeks.
Post after two weeks.' [Extracted and reproduced as such]
2.The above mentioned interim order has been extended from time to time. The third respondent has filed a vacate stay petition vide captioned W.M.P.(MD)No.10731 of 2016 on 27.07.2016 and the same has also been pending for seven years.
3.Be that as it may, Arulmigu Sri Navaneetha Krishnasamy Temple situate in Kovilpathu, Kalakadu, Nanguneri Taluk, Tirunelveli District [hereinafter 'said temple' for the sake of convenience and clarity] is the nucleus of captioned matter, appointment of a Fit Person [jf;fhh;] to said temple and a challenge to a communication from Fit Person to one S.Nambirajan [trustee of said temple] being communication dated 03.02.2016 [hereinafter 'impugned order' for the sake of convenience and clarity] is the central theme of the lis in captioned matter. 3/28 https://www.mhc.tn.gov.in/judis W.P.(MD)No.3136 of 2016
4.Factual matrix in a nut shell ie., facts that are imperative for appreciating this order are that one S.Nambirajan was appointed as a non-hereditary trustee of said temple in 1996 for a period of three years; that such appointment was under 'the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (Tamil Nadu Act 22 of 1959)' {hereinafter 'TN HR & CE Act' for the sake of brevity}; that the three year tenure [obviously] elapsed in 1999; that said S.Nambirajan had not handed over administration of said temple to 'Tamil Nadu Hindu Religious and Charitable Endowments Department' [hereinafter 'TN HR & CE Dept.,' for the sake of convenience and clarity]; that this S.Nambirajan has filed captioned main writ petition styling himself as a trustee of said temple assailing impugned order; that obviously captioned main writ petition has been filed on being called upon to hand over administration of said temple to the Fit Person; that Fit person appointed qua said temple is Executive Officer of another temple viz., Arulmigu Subramaniyasamy Temple situate in Valliyoor, Tirunelveli District – 627 117 [hereinafter 'other temple' for the sake of convenience and clarity]; that other temple is a public temple.
4/28 https://www.mhc.tn.gov.in/judis W.P.(MD)No.3136 of 2016
5.This Court having set out factual matrix and also the trajectory which captioned matter has taken in reaching this final hearing [post completion of pleadings] now embarks upon the exercise of capturing rival pleadings.
6.Mr.R.R.Kannan, learned Counsel for writ petitioner, notwithstanding very many averments in writ affidavit and notwithstanding several grounds raised in writ affidavit made pointed submissions in his campaign against the impugned order and a summation of the same is as follows:
a) The impugned order [to be noted, impugned order is a communication dated 03.02.2016] from third respondent mentions about an order dated 16.09.2008 bearing reference e.f.vz;.10306/07-2 ,1 vide which the Fit Person appears to have been appointed but this order was never served on writ petitioner;
b) The writ petitioner was appointed as a trustee by TN HR & CE Dept., and therefore, he is entitled to have a say qua impugned order. 5/28 https://www.mhc.tn.gov.in/judis W.P.(MD)No.3136 of 2016
7.In response to aforementioned submissions, Mr.M.Lingadurai, learned Special Government Pleader appearing on behalf of respondents 1 and 2 [jurisdictional Joint Commissioner and Assistant Commissioner respectively] adverting to counter affidavit filed by the State on 11.07.2016 submitted as follows:
a) The writ petitioner has been called upon to hand over possession to the previous Fit Person way back in 28.02.2002 itself and therefore he cannot even plead ignorance [this is set out in paragraph No.8 of counter affidavit of the State];
b) The writ petitioner was appointed as a non-
hereditary trustee for said temple [admittedly], such appointment is only for a period of three years that elapsed in 1999 and writ petitioner has no right whatsoever to continue in administration and be defiant by not handing over administration to the present Fit Person;
c) The writ petitioner has engineered a suit in O.S.No.85 of 2002 on the file of District Munsif Court, Nanguneri. TN HR & CE Dept., contested the 6/28 https://www.mhc.tn.gov.in/judis W.P.(MD)No.3136 of 2016 suit and the suit has been dismissed after full contest.
8.Mr.C.Mayilvahana Rajendran, learned private Counsel for Fit Person / Thakkar ie., Executive Officer of other temple made submissions, the details of which are as follows:
a) Adverting to separate counter affidavit of third respondent dated 26.07.2016, which has also been used as support affidavit for vacate stay petition ie., captioned W.M.P.(MD)No.10731 of 2016 it was submitted that said temple is a public temple and the writ petitioner cannot claim any vested right after the three year period for which he was appointed as a non-hereditary trustee;
b) The third respondent ie., Executive Officer of other temple has been appointed as Fit Person under Section 49 of TN HR & CE Act. This is perfectly in accordance with the Statute and no exception can be taken to the same.
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https://www.mhc.tn.gov.in/judis W.P.(MD)No.3136 of 2016
9.In response to the above counter submissions, by way of reply submissions, learned Counsel for writ petitioner besides reiterating the submissions made in his opening arguments submitted that there is a subsequent development and that subsequent development is a Scheme has been framed for said temple at the instance of one Subbarayalu and four others vide order dated 20.01.2021 made in O.A.No.10 of 2018, on the file of first respondent. This Court is informed that this Scheme is under Section 64(1) of TN HR & CE Act but it is a draft Scheme and is yet to be published is learned Counsel's further say.
10.This Court having set out the factual matrix, having captured the trajectory and also having captured the rival submissions, carefully considered the rival submissions in the light of the case file before it. On such careful analysis in the light of the arguments advanced and submissions made by all aforementioned learned Counsel this Court is of the considered view that the prayer in captioned writ petition cannot be acceded to, the discussion and dispositive reasoning in this regard or in other words the reasons for such view are as follows:
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https://www.mhc.tn.gov.in/judis W.P.(MD)No.3136 of 2016 10.1.Writ petitioner has suppressed O.S.No.85 of 2002. No proceedings or orders pertaining to this O.S.No.85 of 2002 on the file of Principal District Munsif Court, Nanguneri [hereinafter 'said suit' for the sake of convenience and clarity] has been placed before this Court. Therefore this Court took it upon itself to go into the District Court website and locate the said suit. This Court finds that said suit has been dismissed by the trial Court in and by judgment dated 19.08.2008 and such judgment is after full contest.
10.2.Be that as it may what is of greater significance is in the said suit which has been filed in the year 2002 the prayer is for a declaration that said temple belongs to a particular community and that the defendants therein should be injuncted from interfering with the affairs of said temple. To be noted the three defendants therein are the jurisdictional Deputy Commissioner, Executive Officer of other temple and Commissioner of TN HR & CE Department, Chennai in that order ie., respectively.
10.3.The suit has been laid by plaintiff in the name and style 'mUs;kpF. etePjfpU\;zrhkp jpUf;nfhtpy;> nfhtpy;gj;J> fsf;fhL mjd; fsf;fhL nfhtpy;gj;J ft[uh eha[L rKjhaj; jiyth; K:yk; (gpujpepjpj;JtKiwapy;)'. This 9/28 https://www.mhc.tn.gov.in/judis W.P.(MD)No.3136 of 2016 means that the suit has been filed as a representative suit obviously under Order I Rule 8 of 'the Code of Civil Procedure, 1908' [hereinafter 'CPC' for the sake of brevity, convenience and clarity]. More importantly, on a perusal of the judgment and more particularly paragraph No.7 as downloaded from official website of the District judiciary brings to light that aforementioned Mr.S.Nambirajan [writ petitioner] has deposed as P.W.1. The excerpted part of the relevant portion of paragraph No.7 of judgment of the District Munsif Court in said suit reads as follows:
''7.tHf;if jhf;fy; bra;j ek;gpuh$d; vd;gth; jd;id th.rh.1 Mf tprhuiz bra;Jbfhz;Ls;shh;. mth; rhl;rpaj;jpy; tHf;F nfhtpy;> nfhtpy;gj;J gFjpapy; thGk; ft[uh eha[L rKjhaj;jpw;F ghj;jpagl;L nkw;go rKjhaj;jhy; eph;thfk; bra;J tug;gLfpwJ vd;Wk; nkw;go ft[uheha[L rKjhaj;jpy; jhd; xU mq;fj;jpdh; vd;Wk; i\ nfhtpYf;F 2k; gpujpthjp jf;fuhf epakdk; bra;ag;gl;Ls;sjhft[k; mthplk; fzf;Ffis xg;gilg;g ntz;Lbkd 28.2.02y; mwptpg;g[ 1k; gpujpthjpaplkpUe;J tug;gl;ljhft[k; Mdhy; tHf;F nfhtpy;> nfhtpy;gj;J ft[uh eha[L rKjhaj;jpw;F jdpg;gl;l nfhtpy; vd;Wk;> mjdhy; 1k; gpujpthjpapd; eph;thfk; nfhtpy; eph;thfj;jpy; jiyaplnth mwq;fhtyh;fis wpakdk; bra;anth jf;fhiu epakdk; bra;anth mjpfhuk; ,y;iy vd;Wk; mjdhy; tHf;F nfhtpy;> nfhtpy;gj;J ft[uh eha[L rKjhaj;jpw;F ghj;jpag;gl;lJ vd;W tpsk;gi [ f bra;anfhhp tHf;F jhf;fy; bra;Js;sjhf Twpa[s;shh;. jd; tha;bkhHp rhl;rpaj;jpw;F Mjuthf th.rh.M1 Kjy; 7 jhf;fy; bra;Js;shh;. th.rh.M.1 28.2.02 njjpa mwptpg;g[> th.rh.M.2 10/28 https://www.mhc.tn.gov.in/judis W.P.(MD)No.3136 of 2016 15.3.02y; mDg;gpa gjpy; kw;Wk; xg;g[jy; ml;il> th.rh. M.3 thlif urPJfs; th.rh.M.4 ghl;l urPJfs; th.rh.M.5 jPh;it urPJfs; th.rh.M.6 kpd;fl;lz urPJfs; th.rh.M.7 i\ nfhtpYf;F Vw;gl;l bryt[f;fhd tt[r;rh;fs;.' 10.4.As already alluded to supra, the suit was ultimately dismissed after full contest. Therefore the writ petitioner cannot claim ignorance about the suit as the writ petitioner has deposed as P.W.1 in the suit. The suit itself is of the year 2002 and the judgment has been rendered by trial Court in 2008. As already alluded to supra captioned writ petition has been filed only on 11.02.2016. Therefore there is no difficulty in accepting the submission of learned State Counsel for respondents 1 & 2 that there is suppression qua writ petitioner with regard to the suit.
The writ petitioner having approached the Civil Court, having made an attempt to get a declaration that said temple is a community temple and more particularly seeking permanent injunction from interfering with the affairs of said temple, ought not to have suppressed this vital fact in captioned writ petition. 11/28 https://www.mhc.tn.gov.in/judis W.P.(MD)No.3136 of 2016 10.5.In the considered view of this Court such suppression by itself is lethal and fatal to the fate of writ petition. However, this Court proceeds to examine the other points that have been raised.
10.6.The fact that writ petitioner was admittedly appointed as non-hereditary trustee and the obtaining position that the attempt of a group of persons to invoke Order I Rule 8 CPC, file a suit in District Munsif Court and get a declaration that said temple is a community temple and having failed the sequitur is said temple is clearly a public temple. Therefore it is a 'religious institution' under Section 6(18) of TN HR & CE Act which reads as follows:
'6(18). “Religious institution” means a math, temple or specific endowment and includes,:-
(i) a samadhi or brindhavan; or
(ii) any other institution established or maintained for a religious purpose.
Explanation.- For the purpose of this clause-
(1) “samadhi”means a place where the mortal remains of a guru, sadhu or saint is interned and used as a place of public religious worship;
12/28 https://www.mhc.tn.gov.in/judis W.P.(MD)No.3136 of 2016 (2) “brindhavan”means a place established or maintained in memory of a guru, sadhu or saint and used as a place of public religious worship, but does not include the samadhi;) 10.7.This takes us to Section 1(3) of TN HR & CE Act which reads as follows:
'1(3). It applies to all Hindu public religious institutions and endowments including the incorporated Dewaswoms and Unincorporated Dewaswoms.
Explanation.- In this sub-section, Hindu public religious institutions and endowments do not include Jain religious institutions and endowments.' 10.8.The TN HR & CE Act received the ascent of the President on 19.11.1959 and it was first published in official Gazette on 02.12.1959. Therefore on and from this date said temple which is a public temple (religious institution) clearly comes under the sweep of TN HR & CE Dept. Owing to the conjoint reading of Sections 6(18) and 6(20), the exceptions to these are the powers vested with the Government to grant exemption. The other option is filing a suit which has been exhausted by a group of persons 13/28 https://www.mhc.tn.gov.in/judis W.P.(MD)No.3136 of 2016 wherein the writ petitioner has deposed. To be noted the excerpted portion of the civil Court judgments describes writ petitioner Nambirajan (PW1) as plaintiff meaning he has represented the plaintiff entity in the civil suit under Order I Rule 8 of CPC. In any case, the said temple is a public temple but this Court deems it appropriate to not to delve any further on that aspect of the matter.
10.9.The moment said temple is a public temple, TN HR & CE Dept., has a duty to safeguard the said temple and its properties. The said temple by very operation of the Statute comes under the sweep of the Statute (TN HR & CE Act) and the administration of TN HR & CE department. There is no concept of taking over possession or taking over administration. This is very clear from the Scheme of the Statute. This Court has repeatedly held that TN HR & CE Act is a self-contained code in a long line of authorities i.e., catena of case laws. This Court has taken a clear categoric and unambiguous view that TNHR&CE Act is a self contained and an illustrative not exhaustive list of this line of case laws is as follows:
(a) In R.Lakshmi Narasimha Bhattar v. The Commissioner, HR&CE case, reported in 2011 SCC On Line Mad 2474, while inter-14/28
https://www.mhc.tn.gov.in/judis W.P.(MD)No.3136 of 2016 alia dealing with a honour (during 'Viswaroopa Dharsanam' in Arulmigu Aranganatha Swamy Thirukovil Srirangam, Trichy) and while referring to earlier orders vide Chapter V inquiry proceedings after holding that remedy is by way of statutory revision under Section 21, a learned Single Judge held that TNHR&CE Act is a self contained code. Most relevant portions are contained in paragraphs 25 and 27 and the same read as follows:
Relevant portion in paragraph 25:
'...Ultimately, if at all the petitioner's grievance to establish an honour attached to his office if any held it can be gone into only by instituting a proceedings under Section 63(e) of the TN HR&CE Act followed by a suit under Section 70(1) and a further appeal to this court under section 70(2) of the Act. Merely accusing the Joint Commissioner cum Executive Officer as biased or contending that the remedy by way of revision need not be availed since the Joint Commissioner cum Executive Officer has no jurisdiction to pass orders cannot be countenanced by this court.15/28
https://www.mhc.tn.gov.in/judis W.P.(MD)No.3136 of 2016 Paragraph 27:
27. In fact the petitioner's hereditary right to receive honour is seriously under challenge by the temple management by relying upon the Tamil Nadu Act 2/1971 and also the allegation was that Rengesa Prohida service is done only by temple servants and hereditary succession over such Kaingaryams is not recognised under law. The so-called custom pleaded was also broken many times and reading of Panchangam was done by other families. All the more reasons, the petitioner has to only approach the authority under the Act and cannot bypass the Act. The Act is the self contained code. Only after exhausting all the remedies, a statutory appeal to this court is available over the action of the authorities. Under these circumstances, W.P.(MD) Nos. 9202 and 9263 of 2011 are also liable to be rejected.' (Underlining made by this Court for ease of reference)
(b) In order dated 21.06.2016 in W.P(MD) No.10840 of 2016 vide V.Subramanian v. The Joint Commissioner, HR&CE Department case, another Hon'ble 16/28 https://www.mhc.tn.gov.in/judis W.P.(MD)No.3136 of 2016 Single Judge of this Court while dealing with challenge to proceedings under Section 78 of TNHR&CE Act and while negativing the challenge to an order under Section 78 of TNHR&CE Act (treating the writ petitioner as an encroacher) held that TNHR&CE Act is a self contained code.
This is articulated in paragraph 7 of this V.Subramanian's order and the relevant portion in paragraph 7 reads as follows:
'7.It is to be noted that the above said Act is a self-contained and in-built 'Act'. It has also gives right to the aggrieved to move before the appropriate forum under the 'Act'. As such, this Court is of the considered view that the Petitioner can very well seek appropriate remedy as against the impugned order, dated 16.03.2016 of the First Respondent and the consequential order, dated 06.06.2016 of the second Respondent, under the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959.'
(c) In Palanichamy v. The Commissioner, HR&CE Department case, reported in 2016 SCC Online Mad 21977, the same Hon'ble Single Judge who 17/28 https://www.mhc.tn.gov.in/judis W.P.(MD)No.3136 of 2016 authored V.Subramanian's case, while dealing with a challenge to an order/proceedings under Section 78 of TNHR&CE Act qua removal of encroachment reiterated the aforementioned paragraph 7 of V.Subramaniam's case. This is in paragraph 30 of Palanichamy's case and the relevant portion reads as follows:
'30. At this stage, on behalf of Respondent Nos. 1 to 3, it is brought to the Notice of this Court that on 21.06.2016, in W.P.(MD) No. 10840 of 2016 between V. Subramanian v. Joint Commissioner, Hindu Religious and Charitable Endowments Department, Theni, Dindigul and Madurai Administration, Madurai, this Court, at paragraph 7, had observed the following:— “7. It is to be noted that the above said Act is a self-contained and in-built ‘Act’. It has also gives right to the aggrieved to move before the appropriate forum under the ‘Act’. As such, this Court is of the considered view that the Petitioner can very well seek appropriate remedy as against the impugned order, dated 16.03.2016 of the First Respondent and the consequential order, dated 06.06.2016 of the second 18/28 https://www.mhc.tn.gov.in/judis W.P.(MD)No.3136 of 2016 Respondent, under the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959.'
(d) In M/s.Temple Worshippers Society v. Government of Tamil Nadu case, some provisions of one set of Rules which go by the name 'Conditions for Appointment of Executive Officer Rules, 2015' ('said Rules' for brevity and convenience) were assailed. This challenge was negatived by a Hon'ble Division Bench presided by Hon'ble Justice Sanjay Kishan Kaul as Chief Justice of this Court (as His Lordship then was) vide order dated 31.01.2017 reported in 2017 SCC Online Mad 7178. I was party to the Bench and I had penned the order for the Hon'ble Division Bench. To be noted, one of the primary grounds of challenge to some provisions of said Rules which is a piece of subordinate legislation made by the Government under Section 116 of TNHR&CE Act. To be noted, Section 116 of TNHR&CE Act is a rule making power.
Some provisions of said Rules do not conform to the statute under which it has been made and it exceeds the limits of authority conferred by the enabling statute 19/28 https://www.mhc.tn.gov.in/judis W.P.(MD)No.3136 of 2016 is one of the main grounds on which the challenge was predicated. In negativing this challenge, one of the fundamental premise on which the order was written is that TNHR&CE Act is a self contained statute. This is captured in sub-paragraph
(i) of paragraph 5 of the order of Hon'ble Division Bench and the same reads as follows:
Sub-paragraph (i) of paragraph 5:
'(i) The said parent Act was enacted in 1959 with the object of providing a self contained statute relating to the administration and governance of Hindu Religious and Charitable Institutions and Endowments in the State of Tamil Nadu. The said parent Act was enacted with the intention of amending and consolidating the law relating to the administration and governance of Hindu Religious and Charitable Institutions and Endowments in the State of Tamil Nadu. We are informed that about thirty six thousands Temples are administered by the Tamil Nadu Hindu Religious and Charitable Endowments Department, Government of Tamil Nadu, (hereinafter referred as ‘TNHR & CE 20/28 https://www.mhc.tn.gov.in/judis W.P.(MD)No.3136 of 2016 Department’ for brevity) by applying the said parent Act.'
(e) In R.S.Mani v. The Joint Commissioner case, an order made by the jurisdictional Joint Commissioner of TNHR&CE Dept. being an order under Section 63(b) of TNHR&CE Act (to be noted Section 63(b) pertains to declaring the office of trusteeship of a temple as hereditary) was assailed. In and by order dated 09.11.2021 made in W.P(MD) No. 20109 of 2021, I had negatived the challenge by relegating the writ petitioner to alternate remedy and while so relegating, the principles i.e., obtaining position that the TNHR&CE Act is a self contained code and Chapter V proceedings therein (to be noted, Chapter V is captioned 'Inquiry') is a legal drill which has a self contained mechanism were reiterated. This is articulated in paragraph 11 of this R.S.Mani judgment and the same reads as follows:
'11. The narrative supra as well as the dispositive reasoning set out supra will make it clear that the entire matter turns heavily on facts. As the matter turns heavily 21/28 https://www.mhc.tn.gov.in/judis W.P.(MD)No.3136 of 2016 on facts, it is only appropriate that the same is dealt with by a statutory appellate authority rather than testing it in writ jurisdiction where the issues are decided on the basis of affidavits and counter-
affidavits. This is more so, as TN HR & CE Act itself is a self contained code (as repeatedly held by this Court) and therefore, Chapter V proceedings of TN HR & CE Act is a legal drill which has self contained mechanism (as already alluded to supra).'
(f) In C.Rajamohan v. Commissioner & Another case, a Hon'ble Division Bench of this Court dismissed a PIL (Public Interest Litigation) wherein the petitioner wanted his representation regarding worship there to be considered. In dismissing this PIL, the Hon'ble Division Bench proceeded on the basis that the TNHR&CE Act is a self contained code. This is articulated in paragraph 2 of this short order dated 26.04.2019 made in W.P(MD) No.10392 of 2019 reported in 2019 SCC On Line Mad 10975. Paragraph 2 of C.Rajamohan's case reads as follows:
22/28
https://www.mhc.tn.gov.in/judis W.P.(MD)No.3136 of 2016 '2. In the opinion of this Court, the Hindu Religious and Charitable Endowment Act is a self-contained Code and a mandamus of this nature in a public interest litigation cannot be issued. Hence, this Writ Petition is dismissed with liberty to the petitioner to work out his remedy in the manner known to law. No costs.' 10.10.The above legal position makes it clear that the appointment of Fit Person is justified and statutorily imperative by operation of the Statute. No exception can be taken to appointment of Fit Person. This takes us to the question of whether writ petitioner has the right to insist that he will have a say that he should have been put on notice regarding appointment of Fit Person. The appointment of Fit Person is clearly a temporary and transitory measure pending constitution of regular Trust Board.
The TN HR & CE Dept., has a duty to do so. In this case the writ petitioner's term as trustee having clearly elapsed way back in 1999 and the writ petitioner's attempt to get a declaration from Civil Court having failed by way of being non-suited, the writ petitioner certainly cannot claim any right to be put on notice. In any event the appointment of Fit Person is not only statutory but a 23/28 https://www.mhc.tn.gov.in/judis W.P.(MD)No.3136 of 2016 sacrosanct and sanctus duty cast on TN HR & CE Dept. It cannot be gainsaid that a person who is holding on to the administration defiantly should be put on notice and should have a say in appointment of Fit Person.
10.11.This takes us to one of the arguments projected viz., that the appointment of Fit Person has not been challenged. In the light of the view taken by this Court this pales into insignificance.
10.12.Another aspect of the matter is with regard to factual dispute as to whether writ petitioner was favoured with a copy of the order of appointment of a Fit Person, as already alluded to supra in paragraph No.8 of the counter affidavit of the State it has been positively averred that a Fit Person was temporarily appointed way back in 2002 and writ petitioner has been put on notice about such appointment specifically on 28.02.2002. This becomes a factual disputation but it may not be necessary to go into this aspect of the matter in the light of the view taken by this Court qua appointment of Fit Person.
24/28 https://www.mhc.tn.gov.in/judis W.P.(MD)No.3136 of 2016 10.13.As Fit Person appointment is a temporary transitory provision, it clearly does not take away or denude any one of his or her rights. It is a transitory temporary provision pending constitution of Trust Board.
10.14.As regards the last submission made by learned Counsel for writ petitioner in the reply arguments regarding the Scheme, from what this Court has been informed it comes to light that a draft Scheme has been put in place under Section 64(1) of TN HR & CE Act vide order dated 20.01.2021 in O.A.No.10 of 2018 on the file of first respondent and this has to be followed by publication in the Gazette subject of course to appeal if any under Section 69 of TN HR & CE Act. If that be so, the law will take its course. This is outside the scope of the case on hand and this has been recorded only for the limited purpose of comprehensively capturing the facts. If there is a Scheme, the Scheme will kick in and the law will take its course. This Court does not have the benefit of the Scheme and in any event it is outside the scope of captioned writ petition. Therefore, this Court does not want to venture into that aspect of the matter.
25/28 https://www.mhc.tn.gov.in/judis W.P.(MD)No.3136 of 2016
11.The aforementioned discussions and dispositive reasoning ie., reasoning set out qua the considered view of this Court the prayer of the writ petitioner fails . It follows as an inevitable sequitur that captioned writ petition fails and the same deserves to be dismissed.
12.Captioned Writ Petition is dismissed. Therefore captioned W.M.P.(MD)No.2751 of 2016 [stay petition] is dismissed. Captioned W.M.P.(MD)No.10731 of 2016 [vacate stay petition] is closed. Notwithstanding the aforementioned suppression, this Court refrains itself from imposing costs in the case on hand.
21.01.2022
Index : Yes / No
Internet: Yes / No
MR
NOTE: In view of the present lock down
owing to COVID-19 pandemic, a
web copy of the order may be
utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned.
26/28 https://www.mhc.tn.gov.in/judis W.P.(MD)No.3136 of 2016 To
1.The Joint Commissioner, Hindu Religious & Charitable Endowments Department, Tirunelveli.
2.The Assistant Commissioner, Hindu Religious & Charitable Endowments Department, Tirunelveli.
27/28 https://www.mhc.tn.gov.in/judis W.P.(MD)No.3136 of 2016 M.SUNDAR., J.
MR ORDER MADE IN W.P.(MD)No.3136 of 2016 21.01.2022 28/28 https://www.mhc.tn.gov.in/judis