Madras High Court
M.K.Balasubramanian vs The Commissioner on 5 February, 2024
W.P.No.2411 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.02.2024
CORAM
THE HONOURABLE MS.JUSTICE R.N.MANJULA
W.P.No.2411 of 2024 and
W.M.P.Nos.2613 & 2614 of 2024
M.K.Balasubramanian ... Petitioner
Vs.
1.The Commissioner,
Hindu Religious and Charitable Endowments Department,
No.119, Uthamar Gandhi Salai,
Nungambakkam,
Chennai - 600 034.
2.The Joint Commissioner,
Hindu Religious and Charitable Endowments Department,
2-F, Chinna Muthu Veedhi,
No.1, Perundurai Road Erode District.
3.The Assistant Commissioner,
Hindu Religious and Charitable Endowments Department,
Collector Office Compound,
Namakkal District.
4.Fit Person / The Assistant Commissioner,
Arulmigu Arthanareswarar Thirukoil,
Tiruchengode Town & Taluk,
Namakkal District. ... Respondents
Prayer : Writ Petition is filed under Article 226 of the Constitution of
India, to issue a Writ of Certiorari, to call for the entire records pertaining
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W.P.No.2411 of 2024
to the 2nd respondent's impugned order
Se.Mu.Nada.Na.Ka.No.122/2024/A3 dated 06.01.2024 and quash the
same.
For Petitioner : Mr.S.Sivakumar
For Respondents : Mr.N.R.R.Arun Natarajan, SGP
ORDER
This Writ Petition has been filed seeking issuance of a Writ of Certiorari, to call for the entire records pertaining to the 2nd respondent's impugned order Se.Mu.Nada.Na.Ka.No.122/2024/A3 dated 06.01.2024 and quash the same.
2. Heard Mr.S.Sivakumar, learned counsel for the petitioner, Mr.N.R.R.Arun Natarajan, learned Special Government Pleader who takes notice for the respondents.
3. The petitioner who claims to be a Managing Trustee of Kanaka Sabai Mandaba Kattalai, has challenged the order appointing a fit person by the second respondent through the impugned order dated 06.01.2024.
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4. The learned counsel for the petitioner submitted that before passing the impugned order dated 06.01.2024, no notice was given to him and hence the order dated 06.01.2024 is illegal and is liable to be set aside.
5. The learned Special Government Pleader for the respondents submitted that the petitioner's tenure as a trustee as per the scheme is only for two years. The petitioner continued to be a trustee of the temple from the year 2010 onwards. As his tenure has expired long back, the second respondent has issued the impugned order by appointing the fit person. It is further submitted that the petitioner has got a remedy by way of filing a revision and this Petition has been filed without working out the same.
6. The learned counsel for the petitioner attracted the attention of this Court to the judgment of this Court held in W.A.(MD) Nos.1288 to 1291 of 2015 dated 14.12.2015, wherein, it is observed as under:
Page No.3 of 10https://www.mhc.tn.gov.in/judis W.P.No.2411 of 2024 "53. In the case of specific endowments such as 'kattalais', an obligation is imposed by the founder of the endowment upon the trustees, to continue to perform specific services perpetually. A property is endowed for the purpose, with a stipulation that the income arising there from should be utilised for the performance of the kattalai. As a consequence, the ownership of the property is not passed on to the idol, but a charge is created on the property for the performance of the services for which the specific endowment is created.
54. Since the primary object of creating a kattalai is to ensure the continued performance of a specific service, the trustees are also normally endowed with an obligation to spend money out of their own pockets whenever the income from the dedicated properties fall short of the expenditure required for the performance of the kattalai.
55. If a fit person is appointed completely ousting the descendents of the founder from trusteeship, on the ground that one of them or some of them in the lineage committed an irregularity, thereby disqualifying all his descendents, the very purpose of the kattalai will be in jeopardy.Page No.4 of 10
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56. Take for instance a case where the expenditure involved for the performance of a kattalai is about Rs.50,000/- per year. If the income from the properties dedicated to the kattalai is only Rs.40,000/- per year, the special trustees are obliged to perform the kattalai by contributing shortfall of Rs.10,000/- from out of their own pockets. They cannot escape the obligation on the ground that the income is not sufficient.
57. But, that is not the case with a fit person. A fit person cannot be expected to spend money out of his pocket to perform the kattalai. Therefore, if the wishes of the founder of a specific endowment are to be honoured, it is necessary that the rule of next in the line of succession statutorily recognised, has to be followed. This is perhaps the reason why this Court has consistently taken the view that even in cases where the parents were guilty of some wrong doing, the children were not disqualified from being appointed as trustees.
58. We are not to be understood as putting a seal of approval on the attempts of the present trustees to alienate a property. We are also not to be understood as affixing a seal of approval on the alienation made by the parents of the appellants in 1956 and 1957. By law, all these alienations are null and void. Even under the deed Page No.5 of 10 https://www.mhc.tn.gov.in/judis W.P.No.2411 of 2024 dated 07.09.1921, by which the endowment was created, the trustees had no power of alienation. Therefore, irrespective of whether steps were taken for the restoration of the properties or not, those alienations are null and void. If the appellants, who fight for the devolution of trusteeship, are interested in honouring the wishes of the founder, they should certainly take steps to recover possession of the properties already alienated.
59. Therefore, in fine, the last contention of Mr.M.Vallinayagam, learned senior counsel for the appellants, that the appointment of the fit person was illegal and that the next in the line of succession should have been appointed, merits acceptance. Interestingly, none of the seven charges framed against any of the appellants allege that they ever failed to perform the mandagapadi in a befitting manner. Therefore, the obligations created under the document of the year 1921, creating an endowment, appear to have been fulfilled all these years by the descendents of the founder of the endowment. It is only when there is any laxity on the part of the trustees in the performance of these obligations that their complete removal from the scene, if at all it is legally possible, can be resorted to."
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7. But in the instant case, the petitioner is not a founder of the Kattalai. He has been appointed as a non-hereditary trustee in accordance with the scheme already framed in respect of the management of the Kattalai. Hence, the case in hand is distinguishable on facts from the case held in the above Writ Appeal cited by the petitioner. Even the appointment of a fit person is not a permanent measure and once the trustees are elected, the responsibilities will be handed over to the trustees and the fit person will be relieved thereafter.
8. It is not in dispute that the petitioner who is holding trusteeship from the year 2010 was not disturbed till now and the terms of the scheme has not been followed. Under such circumstances, it is right for the respondents to appoint a fit person before conducting election for the electing the trustees and then hand over the responsibility to the newly elected trustees. Since the petitioner is not the founder of the endowment and he is a trustee for a limited period and his tenure has also expired long long back, the respondents have decided to appoint a fit person.
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9. If the petitioner still has got any grievance with regard to the appointment of a fit person, it is always open to him to challenge the same by way of invoking Section 21 by filing a revision before the Commissioner. However, it is advisable that the respondents also shall complete the process of election of trustees and put the elected trustees in place as early as possible.
10. With the above observations, this Writ Petition is disposed. No costs. Consequently, connected miscellaneous petitions are closed.
05.02.2024 Index : Yes /No Internet : Yes/No Speaking / Non-speaking Neutral Citation : Yes / No gsk Page No.8 of 10 https://www.mhc.tn.gov.in/judis W.P.No.2411 of 2024 To
1.The Commissioner, Hindu Religious and Charitable Endowments Department, No.119, Uthamar Gandhi Salai, Nungambakkam, Chennai - 600 034.
2.The Joint Commissioner, Hindu Religious and Charitable Endowments Department, 2-F, Chinna Muthu Veedhi, No.1, Perundurai Road Erode District.
3.The Assistant Commissioner, Hindu Religious and Charitable Endowments Department, Collector Office Compound, Namakkal District.
4.Fit Person / The Assistant Commissioner, Arulmigu Arthanareswarar Thirukoil, Tiruchengode Town & Taluk, Namakkal District.
Page No.9 of 10https://www.mhc.tn.gov.in/judis W.P.No.2411 of 2024 R.N.MANJULA, J.
gsk W.P.No.2411 of 2024 and W.M.P.Nos.2613 & 2614 of 2024 05.02.2024 Page No.10 of 10 https://www.mhc.tn.gov.in/judis