Madras High Court
R.S.Mani vs The Joint Commissioner on 9 November, 2021
Author: M.Sundar
Bench: M.Sundar
W.P(MD)No.20109 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 09.11.2021
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR
W.P(MD)No.20109 of 2021
and
W.M.P.(MD).No.16810 of 2021
R.S.Mani ... Petitioner
Vs.
1.The Joint Commissioner,
Hindu Religious and Charitable Endowments Department,
Madurai.
2.The Assistant Commissioner,
Hindu Religious and Charitable Endowments Department,
Madurai.
3.The Inspector,
Hindu Religious and Charitable Endowments Department,
Madurai.
4.Nadukattan @ Mani Poosari ... Respondents
Prayer : Writ Petition filed under Article 226 of the Constitution of India,
praying this Court to issue a Writ of Certiorarified Mandamus, to call for the
records relating to the impugned order of the first respondent in O.A.No.10 of
2021 dated 20.09.2021 and quash the same and consequently direct the first
respondent to take action against the third respondent for submitting a false
report.
https://www.mhc.tn.gov.in/judis
1/13
W.P(MD)No.20109 of 2021
For Petitioner : Mr.H.Arumugam
ORDER
Captioned main writ petition has been filed assailing an 'order dated 20.09.2021 made in O.A.No.10 of 2021 on the file of the first respondent' (hereinafter 'impugned order' for the sake of convenience and clarity).
2. Mr.H.Arumugam, learned counsel for writ petitioner adverting to the impugned order submitted that the impugned order has been made by the first respondent under Section 63(b) of 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 convenience and clarity). Learned counsel submitted that the impugned order pertains to a Temple which goes by the name 'Arulmighu Kambathadi Sonaiya Temple at No.6B, Samiyar Lane, Kajimar Road in Madurai Town' (hereinafter 'said Temple' for the sake of convenience and clarity).
3. Adverting to the impugned order, learned counsel submitted that fourth respondent in the captioned writ petition has moved the first respondent vide aforementioned O.A.No.10 of 2021 without arraying anyone as a respondent and obtained the impugned order. Learned counsel drew the https://www.mhc.tn.gov.in/judis 2/13 W.P(MD)No.20109 of 2021 attention of this Court to a genealogical chart which has been styled 'Family Tree' at Page No.1 of the typed set of papers. Adverting to the same, learned counsel submitted that said Temple was originally founded by one Sonai Poosari and that writ petitioner is one of the third generation descendants of the founder late Sonai Poosari. It was further submitted that the fourth respondent, who is a fourth generation descendant of late Sonai Poosari has petitioned the first respondent and obtained the impugned order.
4. Notwithstanding very many averments made in the writ affidavit and notwithstanding the very many grounds raised in the writ affidavit filed in support of the main Writ Petition, learned counsel for writ petitioner in his campaign against the impugned order made one pointed submission and that is violation of Natural Justice Principles (NJP). Learned counsel submitted that fourth respondent while petitioning the first respondent under Section 63(b) of the TN HR & CE Act ought to have arrayed the writ petitioner and the other descendants of late Sonai Poosari as 'respondents'. The writ petitioner has not done this, but the first respondent has entertained the petition. Therefore, the impugned order has been made without giving an opportunity to the writ petitioner to articulate his stated position qua said Temple and qua the prayer under Section 63(b) of the TN HR & CE Act. This according to learned counsel for the writ petitioner is violation of NJP. https://www.mhc.tn.gov.in/judis 3/13 W.P(MD)No.20109 of 2021
5. To be noted, there is no disputation or disagreement that the impugned order has been made under Section 63(b) of the TN HR & CE Act which finds its statutory slot under Chapter V of TN HR & CE Act. Chapter V proceedings of TN HR & CE Act are governed by a self contained mechanism, i.e., an appeal to the Commissioner, 'Tamil Nadu Hindu Religious and Charitable Endowments Department' (hereinafter 'TN HR & CE Department' for the sake of convenience and clarity) followed by a suit under Section 70 of the TN HR & CE Act and a further appeal to this Court (High Court) under Section 70(2) of the TN HR & CE Act. It has been repeatedly held by this Court in a catena of authorities that the TN HR & CE ACT itself is a self contained code. Therefore this Court is of the view that Chapter V proceedings are a self contained legal mechanism and a legal drill qua Chapter V proceedings will have to necessarily be governed by the same barring exceptional circumstances including well settled exceptions qua alternate remedy rule.
6. Therefore, it is clear that the writ petitioner has to first get past the threshold barrier of alternative remedy (in this case, appeal under Section 69 of TN HR & CE Act i.e., statutory appeal to the Commissioner) before plunging into merits of the matter. Therefore, this Court examined whether the writ petitioner crosses the barrier.
https://www.mhc.tn.gov.in/judis 4/13 W.P(MD)No.20109 of 2021
7. This Court having heard the learned counsel and having perused the writ affidavit, is of the considered view that the writ petitioner does not succeed in his endeavour to cross the aforementioned threshold barrier and the reasons are as follows:
(a) Section 63(b) proceedings are legal drills where the first respondent (jurisdictional Joint Commissioner) decides whether the trusteeship of a Temple is hereditary or not. Who amongst the heirs of the deceased founder is to be a hereditary trustee is in another realm.
In the instant case, there is no disputation or disagreement that the proceedings are under Section 63(b). This Court refers to this aspect of the matter as this Court is relegating the writ petitioner to alternate remedy, but refrains itself from saying anything further (on merits) in this matter as that would impact (give impetus or impede) the statutory appeal of the writ petitioner, if that be so.
(b) In the case on hand, the exact date on which the writ petitioner obtained a certified copy of the impugned order has not been set out with specificity. Be that as it may, a perusal of the impugned https://www.mhc.tn.gov.in/judis 5/13 W.P(MD)No.20109 of 2021 order reveals that it has been received by writ petitioner under cover of a letter from the office of the first respondent and the cover letter is dated 20.09.2021. The time frame or in other words limitation for preferring a statutory appeal is 60 days and on a demurrer, even if 20.09.2021 is taken as reckoning date, the writ petitioner still has enough time to avail the alternate remedy and file a statutory appeal before the Commissioner, TN HR & CE Department under Section 69 of the TN HR & CE Act.
(c) On NJP, if the writ petitioner had been arrayed as a respondent and if the first respondent had made the impugned order without hearing the writ petitioner that may qualify as a NJP violation, but in the case on hand, 63(b) proceedings have been conducted on the basis that no respondents are necessary. This may at best qualify as a ground for appeal. On this aspect again, this Court refrains itself from expressing any opinion as that would impact (provide impetus or impede) a possible statutory appeal before the Commissioner, TN HR & CE Department under Section 69 of TN HR&CE Act. It is well open to the writ petitioner to canvass this point also in a statutory appeal. https://www.mhc.tn.gov.in/judis 6/13 W.P(MD)No.20109 of 2021
(d) As already alluded to supra, Section 63(b) proceedings are legal drills qua determination as to whether trusteeship of a Temple is hereditary or not. In these circumstances, even according to the Family Tree or in other words, the genealogical chart placed before this Court, the writ petitioner as well as the fourth respondent in captioned matter (the petitioner before the first respondent in the impugned order / proceedings) are descendants of Sonai Poosari and one is a son of a distant cousin of the other. Therefore, in the case on hand, it appears to be a tussle between two descendants as to who would be in the administration of the said Temple. In this aspect also, this Court refrains itself from expressing any further opinion as that would either impact (give impetus or impede) possible proceedings under Section 69 of the TN HR & CE Act.
(e) A legal drill under section 63(b) of TN HR & CE Act need not necessarily be always adversarial. It can well be proceedings with no respondents also. Therefore, in the case on hand, the complaint that the Joint Commissioner (first respondent) should have called upon the fourth respondent in the captioned matter (petitioner before the first respondent in the impugned order / proceedings) to array the writ petitioner as a respondent in 63(b) proceedings and he had fallen in https://www.mhc.tn.gov.in/judis 7/13 W.P(MD)No.20109 of 2021 error in not doing so is clearly a matter for statutory appeal. This Court is clear in its mind that this is not a ground to interfere in writ jurisdiction on the teeth of an alternate remedy, particularly when the matter heavily turns on facts. It turns on facts as genealogy and several other aspects of factual matrix qua ground situation have to be gone into to examine this alleged error. To be noted, appellate authority under section 69 of TN HR&CE Act can also go into the facts (like the original authority) and there is no legal impediment in this regard.
(f) Alternate remedy rule no doubt is not an absolute rule and it is a discretionary rule. In the case on hand, for various reasons set out supra and more particularly, the reason that the matter turns heavily on facts, this Court is not inclined to interfere qua impugned order in writ jurisdiction.
8. For the sake of convenience, clarity and for better appreciation of this order, this Court deems it appropriate to extract and reproduce the Family Tree which has been placed before this Court as a part of case file and the same is as follows:
https://www.mhc.tn.gov.in/judis 8/13 W.P(MD)No.20109 of 2021
9. To be noted, in the aforementioned Family Tree, the writ petitioner has been shown as a third generation descendant with 'petitioner' in parenthesis and the fourth respondent has been shown as a fourth generation descendant with 'R-4' in parenthesis. This clearly buttresses the theory that the issue appears to be a tussle between the writ petitioner and the fourth respondent, who is the writ petitioner's distant cousin's son being the descendant of one individual, namely, Sonai Poosari.
10. There has been more than one civil suit and therefore the tussle does not appear to be a new phenomenon. In other words, the tussle is not a recent eruption. Be that as it may, two civil suits which have been adverted to bring to light that they pertain to alienation of some properties qua said Temple and do not touch upon the question as to whether the trusteeship of the said https://www.mhc.tn.gov.in/judis 9/13 W.P(MD)No.20109 of 2021 Temple is hereditary or not. Therefore, it is clear that Section 63(b) legal drill has not been undertaken qua the said Temple until this point of time and the impugned order is clearly the first legal drill in this direction. Therefore, in this view of the matter also, it is more appropriate that the issues raised are canvassed in a statutory appeal.
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 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).
12. The sequitur is captioned main writ petition fails and the same is dismissed albeit preserving the rights of the writ petitioner to prefer a statutory appeal under Section 69 of the TN HR & CE Act which will lie to the Commissioner, TN HR & CE Department at No.119, Uthamar Gandhi Salai (previously Nungambakkam High Road), Chennai-600 034. To be noted, this appellate authority has not been arrayed as a respondent in the captioned writ petition. Be that as it may, this Court makes it clear that the appellate authority, https://www.mhc.tn.gov.in/judis 10/13 W.P(MD)No.20109 of 2021 namely, the Commissioner (TN HR&CE Department) if approached by the writ petitioner shall consider the appeal on its own merits and in accordance with law uninfluenced by / untrammeled by any observations made in this order including observations which may have the trappings of expression of opinion on the merits of the matter as they have been made for the limited purpose of disposal of the captioned writ petition. It is also made clear that the appeal shall be disposed of as expeditiously as possible by the appellate authority i.e., as expeditiously as the business of the appellate authority would permit. As the appellate authority has not been arrayed as one of the respondents, Registry is directed to communicate a copy of this order to the appellate authority, namely, the Commissioner, TN HR & CE Department at No.119, Uthamar Gandhi Salai (previously Nungambakkam High Road), Chennai-600 034. Consequently, captioned Writ Miscellaneous Petition is disposed of as closed. There shall be no order as to costs.
09.11.2021
Index : Yes
Internet : Yes
tsg
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.
https://www.mhc.tn.gov.in/judis 11/13 W.P(MD)No.20109 of 2021 To The Commissioner, No.119, Uthamar Gandhi Salai, (Previously Nungambakkam High Road), Chennai-600 034.
https://www.mhc.tn.gov.in/judis 12/13 W.P(MD)No.20109 of 2021 M.SUNDAR, J.
tsg W.P(MD)No.20109 of 2021 09.11.2021 https://www.mhc.tn.gov.in/judis 13/13