Madras High Court
P.S.Rudhrakumar vs The Commissioner
Author: Anita Sumanth
Bench: Anita Sumanth
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22.03.2021& 21.10.2021
CORAM
THE HONOURABLE DR. JUSTICE ANITA SUMANTH
A. Nos.4951, 3918, 4952, 4954, 4955, 4956, 3896, 4957, 4953 of 2017 and
OANo.711 of 2017 in C.S. No.117 of 1907 andWP. Nos. 28763, 34672,
29658, 29659 of 2013, 27842, 17599, 18068, 23560, 27681, 15151, 3527,
27522 of 2014
WP.No.30371 of 2015, WP.No.2301 of 2016, WP.No.15026 of 2017 and
WMP.Nos.16263 & 16264 of 2017 andA.No.9748 of 2018 & C.S.No.837 of
2018 & W.P. No.5293 of 2017
A.No.4951 of 2017:
1 P.S.Rudhrakumar
2 N.B.Selvaraj
3 P.R.Rajasekaran
4 M.Vijayakumar
5 R.Chandrasekar
6 E.Jayakumar
7 A.B.Srinivasan
8 E.Kandan
9 E.Palani .. Petitioners
Vs.
1 The Commissioner
Hindu Religious&CharitableEndowments
UthamarGandhiAdigalSalai, Nungambakkam,
Chennai 34.
2 The Joint Commissioner
Hindu Religious&CharitableEndowments
UthamarGandhiAdigalSalai, Nungambakkam,
Chennai 34.
1
3 ArulmiguSriMuthukumaraswami
Temple alias KandaswamiTemple
44RasappaChettyStreet,ParkTown,Chennai-3
rep by its Executive Officer .. Respondents
Prayer: Application filed to pass an order of stay of operation of the order
dt.26.04.2017 in suo-moto A.A.No.3/1992 on the file of the 2nd respondent
pending disposal of the application to set aside the same.
WP.No.28763 of 2013:
1 G.Gopal .. Petitioner
Vs
1 The State
Rep. By Its Principal Secretary Tourism
Culture And Religious Endowment Department
Secretariat Chennai-9
2 The Commissioner
Hindu Religious And Charitable Endowment
Department Uthamar Gandhi Salai
Nungambakkam Chennai-34
3 The Joint Commissioner
(Chennai) Hindu Religious And Charitable
Endowment Department Uthamar Gandhi Salai
Nungambakkam Chennai-34
4 S.Muthu
Senior Trustee Sri Muthukumarasamy
Devasthanam Alias ArulmighuKanthasamyThirukoil
44 Rasappa Chetty Street Park Town
Chennai-3 ..Respondents
2
Prayer: Writ Petition filed under Article 226 of the Constitution of India
praying to Writ of Mandamus directing the 1st respondent to dispose of the
Miscellaneous Petition dated 25.4.2013 filed by the petitioner within the time
stipulated by this Court.
W.P.No. For Petitioner For Respondent (s)
23560 of 2014 Mr.K.Mohanamurali Mr.M.Karthikeyan,
Spl.G.P. – R1 & R2
Mr.S.R.Rajagopal,
Addl. Advocate General
Assisted by
Mr.R.Bharanidharan –
R3
Mr.M.Rajamani – R4
30371 of 2015 Mr.Shanmugam Mr.M.Karthikeyan,
Spl.G.P. – R1 & R2
Mr.S.R.Rajagopal,
Addl. Advocate General
Assisted by
Mr.R.Bharanidharan –
R3
29658 of 2013 Mr.P.Shanmugam Mr.M.Karthikeyan,
Spl.G.P. – R1
Mr.K.Mohanamurali –
R2 to R4
29659 of 2013 Mr.P.Shanmugam Mr.M.Karthikeyan,
Spl.G.P. – R1
Mr.K.Mohanamurali –
R2 to R4
18068 of 2014 Mr.L.Chandrakumar Mr.M.Karthikeyan,
Spl.G.P. – R1 & R2
Mr.S.R.Rajagopal,
Addl. Advocate General
Assisted by
Mr.R.Bharanidharan –
R3
2301 of 2016 Mr.Mohanamurali Mr.M.Karthikeyan,
Spl.G.P. – R1 R2 & R4
3
Mr.A.K.Sriram – R3
27681 of 2014 Mr.S.V.Jayaraman, Mr.M.Karthikeyan,
Senior Counsel Spl.G.P. – R1 & R2
For Mr.N.Umapathi Mr.S.R.Rajagopal,
Addl. Advocate General
Assisted by
Mr.R.Bharanidharan –
R3 & R4
28763 of 2013 Mr.N.Velmurugan Mr.M.Karthikeyan,
Spl.G.P. – R1 to R3
Mr.K.Mohanamurali –
R4
3527 of 2014 Mr.R.Shanmugam Mr.M.Karthikeyan,
Spl.G.P. – R1
Mr.S.R.Rajagopal,
Addl. Advocate General
Assisted by
Mr.R.Bharanidharan –
R2
15151 of 2014 Mr.Shanmugam Mr.S.R.Rajagopal,
Addl. Advocate General
Assisted by
Mr.R.Bharanidharan –
R1
17599 of 2014 Mr.L.Chandrakumar Mr.M.Karthikeyan,
Spl.G.P. – R1 & R2
Mr.S.R.Rajagopal,
Addl. Advocate General
Assisted by
Mr.R.Bharanidharan –
R3
No appearance – R4
Mr.R.Shanmugam – R5
15026 of 2017 Mr.K.Mohanamurali Mr.M.Karthikeyan,
Spl.G.P. – R1 R2 & R4
Mr.S.R.Rajagopal,
4
Addl. Advocate General
Assisted by
Mr.R.Bharanidharan –
R3
34672 of 2013 Mr.Shanmugam Mr.M.Karthikeyan,
Spl.G.P. – R1 to R3
Mr.S.V.Jayaram, Senior
Counsel
For Mr.J.Dhanasekar –
R10
27522 of 2014 Mr.K.Mohanamurali Mr.M.Karthikeyan,
Spl.G.P. – R1 & R2
Mr.S.R.Rajagopal,
Addl. Advocate General
Assisted by
Mr.R.Bharanidharan –
R3
27842 of 2014 Mr.Mohanamurali Mr.M.Karthikeyan,
Spl.G.P. – R1 & R2
Mr.S.R.Rajagopal,
Addl. Advocate General
Assisted by
Mr.R.Bharanidharan –
R3 & R4
A. Nos.4951 to 4957 Mr.K.Chandrasekaran Mr.M.Karthikeyan,
of 2017 Special Government
Pleader for R1 & R2
Mr.S.R.Rajagopal,
Addl. Advocate General
Assisted by
Mr.R.Bharanidharan –
R3
A.No.3896 of 2017, Mr.K.Mohanamurali Mr.S.R.Rajagopal,
A.No.3918 of 2017 Addl. Advocate General
& O.A. No.711 of Assisted by
2017 Mr.R.Bharanidharan –
5
R3
Mr.M.Karthikeyan,
Special Government
Pleader for R1, R2 &
R4
A.No.9748 of2018:
1.Kanthakotta AyiraVysiyaberiChettiar
SamoogaMunnetra Sangam Registered Society
registered under the Tamil Nadu Societies Reg. Act 1975
Sl.no.335/2017
rep.by its joint secretary
2.P.S.Rudhra Kumar
3A.B.Srinivasan …. Applicants
Vs
1.Sri Muthukumaraswamy Devasthanam
Popularly known as Kanthakottam Temple
Rep.by EO/Fit Person appointed by HR & CE Department
Park Town Chennai 600 003
2.Sri Muthukumaraswamy Arts and Science College
Kodungaiyur, Chennai 118
Rep.by its Correspondent
3.Sri Muthukumaraswamy Devasthanam
Sri Venugopal Chettiar Primary and Higher Secondary School
Rolters Street, Chennai 12
Rep.by its Correspondent
4.Sri Muthukumarswamy Devasthanam
Hindu Primary and Higher Secondary School
Rep.by its Correspondent Chennai 03
5.Sri Muthukumarswamy Devasthanam
Hindu Primary School
6
No.4 Subbu Street Park Town Chennai
Rep.by its Correspondent
6.Kannabiran Padmavathi AmmalPrimary School
Chennai
Rep.by its Correspondent
7. SMK Vidhyashram CBSE
Plot No.92/1 and 9 8th Block Chennai
rep. by its Correspondent
8.P.K.Krishnamurthy
9.P.K.Krishnamurthy
10.P.Ekambaram
11.R.Vivekananthan
12.R.Lakshmanaswamy
13.K.Elangovan
14.P.E.Ramachandran
15.Sree Muthukumaraswamy Educational Society
Rep.by its President Chennai 03. .. Respondents
Prayer: Application filed to appoint a Receiver/Administrator to take over the
administration of the educational institutions namely Defendants 2 to 7 and
conferring the receiver with all powers of administration essential for running
and administering the said educational institutions pending disposal of the suit.
AND
W.P. No.5293 of 2017
Sri Muthukumarasamy
Devasthanam Popularly known as KandhakottamTemple
Chennai-3 Rep. by its Fit Person/
Assistant Commissioner HR & CE Department
7
Chennai. …. Petitioners
Vs
1.The Inspector General of
Registration Department of Registration
Santhome High Road Santhome Chennai-28.
2.The Registrar of Societies
(District Registrar) North Chennai
Department of Registration First Line Beach
Road Chennai-1.
3.Sree Muthukumarasamy
Educational Society Rep. by its President P.
Ekambaram Having its Office at No.212 Mint Street,
Chennai-3.
4.C.S.Parthasarathy
5.P.Uvaraja Sundaram
(R4 &R5 impleaded vide order dated 26.04.2021
Made in WMP.No.18685/2020 in WP.5293/2017 …. Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India
praying to Writ of Certioraricalling for the records comprised in Proceedings
No.2104/E/2008 dated 25.3.2010 merging Sri Muthukumarasamy
Devasthanam Educational Society with Registration No.319/79 with
SreeMuthukumarasamy Educational Society with Registration No.338/08 on
the file of the second respondent quash the same and consequently direct the
third respondent society to handover the Management Administration as well
as the properties of the Educational Institutions to the petitioner Temple
Administration.
For Petitioner : Mr.R.Bharanidharanin WP.5293/2018
Mr.L.Chandrasekaran in
A. No.9748 of 2018& C.S. No.837 of 2018
For Respondents : Mr.NRR.Arun Natarajan (in WP.5293/2018)
Government Advocate (for R1 & R2) and
8
R1 in A. No.9748 of 2018 &
C.S. No.837 of 2018
Mr.P.J.Rishikesh for R4 & R5 in
W.P. No.5293/2018
Mr.SatishParasaran, Senior Counsel
for Mr.R.Parthasarathyfor R3 in
W.P.No.5293 of 2018 and R2 to R10
A. No.9748 of 2018& C.S. No.837 of 2018
Mr.M.Sankar&Mr.K.Satishkumar
for R13 in A. No.9748 of 2018
& C.S. No.837 of 2018
Mr.P.K.SivasubramaniamforR14 in
A. No.9748 of 2018& C.S. No.837 of 2018
Mr.K.Vijayaraghavan for R11, R12, R15in
A. No.9748 of 2018 & C.S. No.837 of 2018
COMMON ORDER
The Kandakottam Temple contains a stone encryption, as per which one, VelurMarichettiar, along with his friend KandappaAchari had been returning from Thiruporur on a Karthigai day in the year 1683, i.e., 1519- Salivahana, 4774 – Kaliyugathi. They had stopped to rest enroute and had fallen asleep when Lord Murugan is said to have appeared in their dream, conveying to them that his idol could be found close by.
2.They were instructed to find the idol and consecrate the same at Madras. In accordance with the diktat, both Marichettiar and KandappaAchari searched for and located the idol. Marichettiar purchased a piece of land, constructed a temple and consecrated the idol of Shri Muthukumaraswamy in what has come to referred to over the years as KandaKottam (in short and 9 hereinafter referred to as ‘temple’). He was a member of the Beri Chetty community, a sub-sect of the Vysya community, (in short and hereinafter referred to as ‘community’) many of whom who are disciples of Sri Abinava Dharma Sivachariar.
3.He called for a meeting of members of the community and instructed them that the temple should be managed by the community, who should take charge of it and conduct all poojas and rituals regularly. 180 years later, the original brick and mortar construction was replaced with granite. The temple has thus been in existence since 1673 for more than 350 years. Unfortunately, for the last 100 years, the temple has been mired in rampant litigation.
4.C.S.No.117 of 1907 was filed by a group of persons belonging to the Beri Chetty community seeking formulation of a scheme for management of the temple in terms of Section 92 of the Civil Procedure Code 1908 (in short ‘CPC’). A scheme came to be framed on 12.01.1910, which provided for the governance of the temple including the mode of conduct of election for constitution of the Board of Trustees.
5.Four Dharmakarthas were to be elected by voters from the register maintained by members of the Beri Chetty community, who were to hold office for a period of five years. The scheme reads as follows:
1. The Board of Dharmakarthas shall consist of four Dharmakarthas who shall be elected by voters whose names appear 10 in the register to be maintained by the Dharmakartha as hereinafter provided.
2.The Dharmakarthas for the time being shall maintain a register in which shall be included in the name of in full with his occupation and residence of every adult member of the Beri Chetty caste residing within the limits of the City of Madras and being a follower of Sri Abinava Dharma Sivachariar and who shall have submitted a written application to the Dharmakarthas accompanied by an enrolment fee of eight annas asking that his name with occupation and residence may be entered in such register and only those members of the Beri Chetty community whose names appear in such register shall be entitled to vote for the election of Dharmakarthas.
3.The register of voters shall be revised in December of each year by striking out the names of such voters as may have dies prior to that date and by including the names of such voters as may have applied for enrolment before the 30th of November. Copies of the List of such voters shall be made available for inspection by all members of the community at the office of the Dharmakarthas in the Temple precincts and printed copies thereof shall be furnished by the Dharmakartha on payment of a fee of eight annas per copy.
4. No person shall be eligible to be a Dharmakartha unless he is himself a registered voter and unless his name shall have been included in the authorized list of voters of the Madras Municipality published by the corporation of Madras for the current municipal year and he shall not be an undischarged insolvent or a person convicted and sentenced to imprisonment for a no- compoundable offence.
5.The Dharmakartha shall hold office for a period of five years but shall be eligible for re-election. This shall not apply to the 1 st defendant, the existing Dharmakartha who shall be entitled to held office for his life.
6.The office of Dharmakartha shall be vacated by resignation or insolvency or sentence to imprisonment on conviction for a non-
compoundable office or on being adjusted a lunatic. 11
7.On the occurrence of any vacancy and within a month thereafter the senior Dharmakartha present in Madras shall take steps to hold an election of filling up such vacancy. Fourteen days notices shall be given of the intention to hold the election specifying the date of election in any Tamil daily newspaper published in Madras and such notice shall also be given by the Dharmakarthas to each of the voters by sending a printed post card containing the notice to his registered address.
8.The election shall be held on a Sunday or any other day which is a public holiday under the Negotiable Instruments Act.
9.Voting shall be by ballot.
10.The election shall be conducted by the senior Dharmakartha present. Manali Murugappa Chetty the 1st defendant herein shall be the senior Dharmakartha until he ceases to be a Dharmakartha by death or otherwise and in regard to others, whoever shall have been earlier elected shall be the senior Dharmakartha and if more than one person have been elected at one election, the person who has secured the larger number of votes.
11.Voting seal take place in the presence of the senior Dharmakartha and of the Headmen of the said Beri Chetty Community if they choose to attend elections shall be held in the temple of Sri Kandaswami between the hours of 9 in the morning and 6 in the evening on the date fixed. The two Headmen of the said Beri Chetty Caste, the candidates for election or their respective representatives not exceeding two in number for each candidate and the Dharmakarthas then in office shall be entitled to be present at the election.
12.Candidates for the office of Dharmakartha shall communicate in writing their intention to stand as such candidates to the Dharmakarthas for the time being at least a week prior to the date of election and it shall be the duty of the senior Dharmakartha to prepare painted voting papers containing the names of all such candidates as have given due notice of their intention to stand as candidates for the Dharmakarthship. One voting paper shall be 12 handed to each of the registered voters when he appears at the pole and the voting shall be by making a mark against the name or names of the candidates or candidates the Voter intends to vote for.
13.Voting papers shall be dropped into a box to which there shall be two keys one of which shall be held by the senior Dharmakartha and the other by the next senior and the votes shall be counted in the presence of the said two Headmen and the candidate or their respective not exceeding tow in number for each candidate or representative choose to be present.
14.For the filling up of three candidates now existing the election shall be hold by the 1st defendant, the sole surviving Dharmakartha and Mr.V.Masilamani Pillai, the receiver appointed herein in the first week of March 1910.
15.Only voters who shall have duly registered their names on or before the 15th day of February 1910 shall be entitled to vote at the said election, the Receivers herein shall cause lists of voters entitled to vote at the said election to be printed in Tamil at the costs of the Temple Funds and arrange on or before the 22nd February 1910 to have copies thereof supplied to voters requiring the same at eight annas a copy.
6.On 25.01.1921, the scheme was modified increasing the number of Dharmakarthas from four to five. Certain provisions were also made setting out disqualifications for the post of Dharmakarthas.
7.The Scheme survived the Madras Hindu Religious Endowments Act, 1927, that provided for the constitution of the Madras Hindu Religious Endowments Board to frame schemes for management of temples and empowered it to notify temples in the interests of proper administration. It also provided for cessation of the scheme either temporarily or otherwise and 13 appointment of Executive Officers (E O) should the Board be satisfied that the temple in question was being mismanaged.
8.A brief snapshot of the successive enactments regulating the management of Hindu religious institutions, is set out at this stage. The Madras Hindu Religious and Endowments Act, 1951 repealed the 1927 Act vesting administration of Religious and Charitable Endowments in a Department comprising of a hierarchy of officers headed by the Commissioner. This enactment also provided for the framing of Schemes for proper administration of temples and endowments. The present Act i.e. 1959 Act repealed the 1951 Act, continuing to provide for regulation of religious institutions and endowments.
9.Section 118 thereof, provides that any repugnancy between the provisions contained in the erstwhile enactments and in the 1959 enactment would be resolved in favour of the provisions contained in the 1959 enactment which shall prevail, to the extent of such repugnancy. The 1959 Act also provides for framing of a Scheme afresh or modification of existing Schemes, if such Scheme were to be inconsistent with the present Act and Regulations such that the deviant clauses of the earlier Scheme are brought in conformity with the provisions of the present enactment and Rules.
14
10.The temple was functioning without incident till 1952, when the then Deputy Commissioner of the Hindu Religious and Charitable Endowments Department (HR & CE Department/Department) proposed to intervene in the management of the temple and apply the provisions of the Madras Hindu Religious and Charitable Endowments Act, 1951 (in short ‘1951 Act’) to various aspects of its functioning. The premise was that the trusteeship was not hereditary in character.
11.Prior to the proposed intervention, the Trustees were heard and the Deputy Commissioner reversed his view accepting the contentions of the Trustees that the Trusteeship was hereditary. His order was reversed by the Commissioner in 1957, which order came to be challenged in O.S.No.2364 of 1957 before the City Civil Court, Madras.
12.The Suit prayed for a Declaration that the temple was denominational in nature belonging exclusively to the Beri Chetty community, a sect that followed the religious tenets and precepts of Sri Abinava Dharma Sivachariar. Though the Suit was decreed on the basis of the evidence adduced by judgement dated 05.11.1958, the court holding that the suit temple was denominational, the question of whether the Commissioner had powers to interfere with and in, the autonomy and exclusive control of the Temple by the 15 community, came to be referred to the High Court, as provided under Section 113 of the CPC.
13.When the reference was being heard by the First Bench headed by the Hon’ble The Chief Justice Ramachandra Iyer, the then Advocate General appearing on behalf of the HR & CE Commissioner is stated to have represented that, pending the intra-Court appeal, the proposal for appointment of Trustees under the Statute had come to be dropped, but that, that, by itself, did not mean that the correctness of the order of the lower Court on the aspect of denomination had been accepted.
14.The reference thus came to be returned by the Bench by judgement dated 19.04.1961 holding that there was no necessity for them to answer the question referred in view of the assurance given by the Commissioner. Thereafter, a compromise was entered into between the Department and the then Trustees on 24.09.1963.
15.While so, in or about 1969, the HR & CE Department once again sought to interfere in the affairs of the templeexercising powers in terms of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (in short ‘1959 Act’) and such intervention was questioned by the trustees in W.P.No.2467 of 1969by way of a writ of prohibition.
16
16.The earlier compromise was to the effect that while the Commissioner would have the right to appoint trustees, the right of the trustees to challenge the compromise itself and seek to set aside the compromise decree, was asserted and protected. The compromise entered into by the parties on 24.09.1963 was eschewed by members of the community, who felt that the then Trustees had, for selfish reasons, compromised the Suit on the understanding that they would continue as Trustees, prejudicing the interests of the larger community.
17.By order dated 26.07.1972, a learned Single Judge of this Court allowed the writ petition rejecting the challenge made. The HR&CE Department challenged order dated 26.07.1972 in W.A.No.9 of 1973 which came to be allowed on 28.01.1976.
18.InW.A.No.9 of 1973, the Bench observed as follows:
We are the opinion that, in the particular circumstance, the question based on article 26 of the constitution does not arise. There was undoubted a finding the temple was a denominational one that was accepted by the department. But, while doing so, the other terms of the compromise which we have already noticed, were agreed to between the parties; all those terms became part of the compromise decree; and that compromise decree is binding on the parties thereto, who were trustees who represented the temple, on the one head and the department, on the other. The trustees in the earlier suit had the necessary legal capacity to represent the temple, because they were appointed under and by the terms of the compromise decree, so long as that compromise decree stands, its terms should be given affect to. The respondents are members of the community and they have not acted in a 17 representative capacity in the petition from which the appeal arises. If they felt that they were not bound by the decree, it was for them to have instituted a suit to have the compromise decree set aside on grounds open to them, if at all. They could not ignore the compromise decree which is a valid one, and, merely on the basis of the finding recorded in the suit and ignoring the other terms of the compromise in the compromise decree take a stand based on section 107 of Tamil Nadu Act 22 of 1959, read with Article 26 of the constitution. The compromise decree was passed in a contested suit between parties who were legally there is the proceedings.
We are therefore of the opinion that, while the compromise decree is still in force the commissioner had the right to issue the notice which he did. The appeal is therefore allowed. No costs.
The respondents, if then suit to have the compromise decree set aside, will have three months' time to do so. During this period the trustees who are functioning under the orders of this court, will continue to function, and only for that period.
19.Thus, while allowing the writ appeal and upholding the right of the Commissioner to interfere in the light of the compromise decree, the Bench granted liberty to the aggrieved trustees to challenge the compromise decree within three months.
20.It is in pursuance of the aforesaid order that C.S.No.126 of 1926 came to be filed by some Trustees arraying the officials of the HR & CE Department as the first and second defendants, the temple as the 5th defendant and other Trustees as other defendants. The Suit sought a declaration to the effect that the members of the Beri Chetty community formed a religious denomination, entitled to exclusively own, administer, manage and conduct the affairs of the 18 temple in tune and tandem with the terms of the Scheme Decree passed in C.S.No.117 of 1907, a permanent injunction restraining the department from interfering in and with the appointment of trustees in the temple and the management of the same as a denominational community and for costs of the suit.
21.The declaration was sought on the basis that the compromise decree dated 24.09.1963 affected its constitutional right to manage the temple in terms of the Scheme framed in 1910. The trustees argued that that the members of the Beri Chetty community, being followers of Shri Abinava Dharma Sivachariar constituted a religious denomination and were entitled to the exclusive right to administer and manage the temple.
22.On 16.06.1987, the suit was dismissed.A learned single Judge of this Court reiterated the correctness of the compromise decree holding however, that the suit temple was not denominational. The aforesaid decision was arrived at based on various factors, one of which was that the Beri Chetty community followed the principles and values espoused by Abinava Dharma Sivachariar who was not a Guru in the traditional sense of the term. Such a group sans a traditional Guru would not constitute a denomination, the learned Judge said, holding against the plaintiffs.
23.As against that judgment, an Intra-Court Appeal in O.S.A.No.108 of 1987 was filed which came to be disposed on 21.02.1994 affirming the 19 judgment in all respects save in respect of the finding that the Commissioner HR&CE could interfere in the management of the temple. Instead, and in order to ensure proper management and supervision of the temple, the Division Bench held that the Commissioner was entitled to bring to the notice of the Scheme Court, any instances of mal-administration of the temple or of its properties. The aforesaid decision was rendered citing in support, a decision of this Court in O. Radhakrishnan And Another vs. Manickam And Ors (1974 2 MLJ 179).
24.As this decision is of some importance as far as the relief for sought in the present batch of matters is concerned, the findings of the Division Bench from paragraph 2 onwards are extracted, as follows:
2.We do not propose to enter into details of the issues and the findings recorded by the learned Judge on such issues, as we shall presently show that no detailed judgment in the appeal by us is required for the reason of the settled principle of law, which, it appears, has not been followed in the trial court. We however propose to mention that the plaintiffs have claimed in the suit that their community is a religious denomination entitled to establish and maintain instructions for religious and charitable purposes and since they are a section of such religious denomination and they have established the temple, they are entitled to maintain the temple and to administer its properties. The trial court has held that their claim that they are a religious denomination is not supported by the materials produced in the course of the hearing of the suit and that on principles of law also, their claim is not justified. All the parties before us have agreed that the dispute whether the temple has been established by a community, which is a religious denomination, is of no consequence, if in principle the existence of a scheme for the management of the temple, is not denied and disputed and the same is resorted to by all concerned, 20 including the 2nd respondent, i.e. the Commissioner, H.R. & C.E. Department. It is indeed a mistake on the part of the 2nd respondent that he has proceeded to interfere with the management of the temple, for which, there is a scheme in existence and so long as the management of the temple is continued under the control of the scheme Court in C.S.N.117 of 1907. A Division Bench of this Court in O.RADHAKRISHNAN, V.MANICKAM, (1974 (II) M.L.J. 179) has explained the legal position in this behalf. After a scholarly review of almost all relevant authorities available until then the Court pronounced that as the language in section 65(4)(a) of the Tamil Nadu Hindu Religious and Charitable Endowments Act stands, the Commissioner has no power to modify or cancel a scheme on an application made by any person and the power conferred on the Commissioner has to be exercised Suo Motu only, and when a scheme settled by a Court is involved, it is always open to the affected parties to approach that Court for any fresh modification of the scheme. It is in this situation that there is a general consensus between the parties that the administration of the temple should be continued in accordance with the scheme in C.S.No.117 of 1907 and if there is any modification/clarification needed, parties may approach the scheme court in C.S.No.117 of 1907 for necessary orders/directions. C.M.P.No.12226 of 1993 has been filed by three persons, who have come forwarded after the election of the office bearers, viz., trustees, pursuant to an order passed by us in C.M.P.No.12588 of 1992, who have already assumed office, for setting aside the election so held. When it has been pointed out that it will be difficult for the Appeal Court to go into the details of the objections of the petitioners therein as to the validity and proper conduct of the petitioners therein as to the validity and proper conduct of the election of the office bearers (Trustees), learned counsel for the petitioners has sought our permission to withdraw the petition, to enable the petitioners to move the scheme Court for appropriate orders, on the facts and in the circumstances of this case, thus, we dispose of the appeal on the following terms and conditions:
(1) It shall be open to the parties to move the scheme Court in C.S.No.117 of 1907 for any modification/clarification, etc. of the scheme itself and/or for any order in respect of any conduct of any 21 person, which, according to them, is not in accordance with/or in consequence with the scheme.
(2) The office-bearers/trustees elected pursuant to the order of this Court in C.M.P.No.12588 of 1992, shall/continue to hold office until there is some order by the Court in C.S.No.117 of 1907.
(3) The 2nd respondent/2nd defendant shall not interfere with the management of the temple except by seeking the leave of the court in C.S.No.117 of 1907 and after obtaining such orders as the Court may deem proper.
(4) The findings of the trial court in all respects are affirmed, except the finding that the 2nd respondent has the authority to interfere with the management of the temple. The 2nd respondent shall however, be entitled, as stated above, to bring to the notice of the Court in C.S.No.117 of 1907 any mal-administration of the properties of the temple and accordingly take necessary orders from the Court in the suit.
3. Subject to the orders and directions, as above, the appeal is disposed of. No costs.
25.Emphasis by underlining as above, is suppliedand the temple is presently listed under Section 46 (iii) of the Act.
26.As regards the power of the official respondents to interfere in the management of the temple, the Bench holds such interference an error. As long as there is a scheme in existence and so long as the management of the temple is continued in accordance with that Scheme, the Department cannot act in supersession or modification of the scheme and in total distortion of its original form and intent, based upon the decision of this Court in the case of O.Radhakrishnan.
22
27.It was however left open to the parties to move the Scheme Court for modification or clarification as required or for orders specifically required to address a situation that, according to them, may not be in accordance with the Scheme. This order was passed in a contested appeal after hearing the arguments of a battery of learned counsel for the appellants as well as the respondents. The order has been allowed to attain finality by both sides.
28.While this is so, the respondents yet again intervened in the management of the temple and on 05.03.1999, O.A.No.3 of 1999, initiated suo- moto by the Joint Commissioner in terms of Section 45 (5) (a) and (b) of the Act, sought amendment of the Scheme. According to the authorities, certain clauses in the Scheme were repugnant to the provisions of the Act. A show cause notice was issued by the Commissioner on 04.12.2002 calling upon the trustees to show cause asking why an Executive Officer (E.O.) not be appointed in view of the irregularities committed by those in management at the time.
29.W.P.No. 95548 of 2002 challenging the aforesaid show cause notice came to be dismissed on 18.09.2003 as against which Writ Appeal No.3716 of 2003 was filed which was also dismissed permitting the petitioner to submit objections to the show cause notice. The order in writ appeal is dated 12.10.2007. In the meanwhile, on 27.04.2005 some trustees filed preliminary objections to the effect that the proposed modification of scheme was without 23 jurisdiction seeing as there was no inconsistency or repugnancy as between the Scheme and the provisions of the Act. The preliminary objections filed were dismissed on 14.12.2005 by the Joint Commissioner.
30.In the interim, G.O.(Pa).No.110, Tamil Nadu Development, Religious Endowments and Information (RE 3.1) Department dated 20.02.2008 came to be issued by the State appointing a Fit Person to manage the affairs of the temple. Consequentially, order dated 21.02.2008 came to be passed directing the Board of trustees in management at that juncture to hand over the affairs of the temple and charge of management and assets to the Fit Person.
31.The G.O came to be challenged in W.P.Nos.4991 and 6566 of 2008 and a learned Judge of this Court, vide order dated 04.08.2008 dismissed the challenge, issuing a series of directions in W.P.Nos 16756 and 17847 of 2008 as follows:
....
4. It is evident from the above said two clauses that the period of the trust board shall be five years and after expiry of the period, the managing trustee (senior dharmakartha) shall hold the election. Following the said elections, the Government felt that after expiry of five year term of the board of trustees, allowing the trustees to continue further is not permissible and it is absolutely required to appoint a fit person to manage the affairs of the trust, which is inclusive of temples and institutions and accordingly it issued the G.O. (Pa) No.110, Zamil Development, Religious Endowments &Information (RB 3.1) Department dated 20.02.2008 appointing a fit person to the 24 temple, following the same, the Commissioner, HR & ??
separately by order dated 21.02.2008 directed the Board of Trustees handover the charges to the fit person, hence, this Court is of the view that both the orders are valid and hence, WP Nos. 4991 of 2008 and 6566 of 2008 are liable to be dismissed.
5. In the other two writ petitions namely WP No. 16756 and 27847 of 2008, the common prayer is to conduct early elections. The learned counsel appearing for the petitioners also prayed this Court so hold elections in accordance with the scheme decree. As mentioned above, clause 10 of the scheme Dharmakartha of the temple to decree empowers hold election. the Taking senior into sideration of the above said facts, the below mentioned order is passed:
Mr. C.R. Palanidoss, senior trustee of the trust board isdirected to hold elections to the trustees of the temple and to declare the results, within a period of 45 days from today The fit person appointed by order dated 21.02.2008 of Commissioner, HRCE Department is directed to take over administration of the trust forthwith, if not already taken over the members of the trust board are directed to handover the administration of trust to the fit person, if not handed over already
iv) The fit person is permitted to operate the bank accounts and administer all the properties, movable and immovable, which in inclusive of all the institutions and temples run by the trust till the newly elected trust board takes over the charges
v) The fit person is directed to handover the administration on after the elected trustees takes oath of their office and he ceased to be the fit person.
vi) Any difficulty in implementing the order, the parties are at liberty to approach this Court.25
....
32.The appointment of the fit person was thus upheld and the trustees whose tenure had come to an end were directed to hand over administration of the temple. Thereafter, vide Proceedings in Na.Ka.24877/2013/A1 dated 20.12.2013, the Executive Officer of the Kapaleeshwar Temple was appointed as Special Officer to oversee the election of the trustees as the tenure of the existing Board of trustees had come to an end on 22.11.2013 as per scheme.
33.G.O.(Misc) No.12 dated 13.01.2014 thereafter came to be passed referring to the opinion of the then Special Government Pleader that an ex- officio Thakkar be appointed till elections were conducted to fill in the vacancies in the Board. The aforesaid G.O is categoric to the effect that the appointment of Thakkar is temporary and constitutes an interim arrangement only.On 13.01.2014, G.O.Ms.No.12 of 2014 was issued appointing an Assistant Commissioner as the fit person of the temple. The term of the trustees came to an end on 23.01.2014 and in view of the vociferous challenge by several trustees to the proposed elections, a Fit Person was appointed to manage the temple.
34.W.P.No.29861 of 2014 was the first of many writ petitions filed challenging the appointment of the election officer, questioning the election notification, the preparation of the voters list, final list of candidates and several aspects of the election process.
26
35.In a batch of such writ petitions, a learned single judge passed an interim order on 02.09.2015 recording the rival contentions of the parties to the effect that while the scheme provided for elections to the Board of trustees and a GO had also been passed paving the way for elections, action had been initiated for suo-moto modification of the scheme as being repugnant to the provisions of the 1959 Act. The Joint Commissioner was directed to dispose the Original Application after taking note of the objections of the petitioners, within a period of four weeks.
36.The O.A. came to be allowed on 10.02.2016 by the Joint Commissioner who rejected all the objections raised by the respondents therein concluding that the scheme framed for the temple was liable to be amended to bring the same in conformity with the provisions of the 1959 Act. Appeal Petition bearing No.20 of 2016 was filed against such rejection before the Commissioner, in terms of Section 69 of the Act.
37.In the meanwhile, on 16.08.2016, a batch of writ appeals filed challenging the interim orders passed by the learned Single Judge on 02.09.2015 came to be dismissed as infructuous since the O.A. had itself been disposed on 10.02.2016. The Benchdirected both that the order passed by the Joint Commissioner on 10.02.2016 be placed for consideration of learned Single Judge hearing the writ petitions, and that the parties bring to the notice 27 of the learned Single Judge hearing the writ petitions, the pendency ofAppeal Petition.No.20 of 2016 challenging order of the Joint Commissioner dated 10.02.2016.
38.W.P.No.32408 of 2016 challenging the show cause notice issued prior to appointment of Executive Officer was dismissed on 16.09.2016 recording the observations of the Division Bench made on 16.08.2016 and also assuaging the apprehensions of the petitioners that the dismissal of the writ petition would not have any impact on the outcome of A.P.No.20 of 2016.
39.In November 2016, Application Nos.4951 to 4957 in unnumbered civil suit of the year 2016 were filed seeking the grant of leave under Section 92 of the CPC for settling of a scheme for the administration and management of various institutions that stood in the name of the temple, for a declaration that the educational institutions constitutes assets of the temple, a direction to the erstwhile trustees to hand over administration of the educational institutions to a committee proposed to be formed, direct the erstwhile trustees to pay back the profits earned by them from 2010 onwards and other such reliefs.
40.A.P.No.20 of 2016 came to be dismissed by the Commissioner HR&CE on 04.04.2017 as infructuous on the ground that an order rejecting the preliminary issues would not survive after the issuance of a draft scheme. 28 W.P.No.10851 of 2017 has been filed challenging the order passed in A.P.No.20 of 2016.
41.An Executive Officer came to be appointed in terms of Section 45(1) of the Act to manage the affairs of the temple as a consequence of the order passed by the Joint Commissioner on 10.02.2016.
42.On 26.04.2017, O.A. 3 of 1999 initiating suo moto proceedings in terms of Section 64(5)(a) and (b) of the 1959 Act came to be ordered and a scheme formulated, duly amending the original scheme framed in the suit to the extent that the latter was thought to be repugnant to the provisions of the 1959 Act.
43.W.P.No.10857 of 2017 came to be dismissed on 27.04.2017 as non- maintainable and paving the way for Original Suit No.2513 of 2017 to be filed before the III Assistant City Civil Court seeking a declaration that the order passed in O.A.No.20 of 2016 dated 04.04.2017, was invalid. This suit is still pending though interim applications have come to be dismissed by the Court. The amendment of Scheme by allowing O.A.No.3 of 1999 is challenged in A.P.No.22 of 2017on the ground that the Joint Commissioner did not have the power or jurisdiction to amend the Scheme.
44.The modified scheme is extracted in full hereunder, for the sake of completion and clarity in narration.
29 SCHEME OF ADMINISTRATION
1.) The administration of Arulmigu Muthu Kumaraswami alias Kandamwani Temple, Rasappa Chetty Street, Chenm 1-600 003 and its properties; both movable and immovable which belongs to or having in possession or may hereafter be dedicated or endowed thereto or acquired or the temple in the name of the presiding Deity or to any one or more of the deities attached to this temple in particular do and shall vest on the respective deities.
2) The administration of the abovetemple shall be carried out by a Board of Non-hereditary trustees, consisting of not less than three and not more than five, to be constituted by the competent authority under the Hindu Religious and Charitable Endowment Act 1959 (Tamil Nadu Act XXII of 1959) in accordance with the provisions contained in the said Act under sections 47, 48, 49 asthe case may be and the rules framed there under as amended from time to time.
3) In view of the fact that in the early of administration settled by the High Court in its order dated 12.01.1919 in C.S.No. 117/1907 and modified by it in its order dt.25.01.1921 customary rights on the Berichetty Community people conferred to administer and manage the above temple as its trustees, the appointment of the Non hereditary trustees as such to be made to the said temple under clause 2 above as per the provisions of the Tamil Nadu HRCE Act 22/1959 shall be from among the members of Beri Chetty Community people who is living in Chennai in the Corporation limits, and must be followers of Abinavah Dharma Shivachariar who possess no disqualifications to be appointed as Trustee as enumerated in Section 26(1) of the said Act.
4) The appropriate Authority of the HR & CE Department shall call for applications from the Beri Chetty Community people as above said sixty days before the date of expiry of the term office of the trustees in the out-going Trust Board of this temple 30 or in case if any vacancy arises in respect of an individual trustee on any other contingencies, such as resignation, removal or dismissal, within thirty days from the date of arising of such vacancy.
Provided when any vacancy occurred in the office of the Trustee could not filled up immediately and thereby there occurs vacuum in the office, the appropriate authority shall appoint a Fit Person to look after the interim managementof the temple until the Trust Board taken up the management.
5) The term of office of the trustees prescribed in the Act from the time to time in general shall be applicable to the trustees of this temple.
6) When a trustee appointed to this temple resign his seat by writing under his hand addressed to the appropriate authority or be removed or dismissed by the appropriate authority under the provisions of section 53 of the HACE Act, 1959, his seat shall thereupon become vacant.
7) For the conduct of election of Chairman of the Board of Trustees the temple and for the conduct of the routine meetings of the Trust Board, the procedures as laid down in Section 48 of the HRECE Act 1959 and in the Rules framed there under shall be strictly adopted by the trustees of this temple. (8) All the matters concerning with the administration of the temple, management of its movable and immovable properties, collection of its income and investments, maintenance of accounts and other records for them and the control of the servants of the temple shall be carried out by the Trustee of this temple strictly in accordance with the provisions of the Hindu Religious and Charitable Endowment Act 1959 (Tamil Nadu Act XXII of 1959) and the Rules framed there under an modified from time to time.
9) In general, all the activities of the Trustees as "Trustees" of this temple shall be in accordance with the provisions of the 31 Hindu Religious and Charitable Endowment Act 1959 (Tamil Nadu Aot XXXII or 1959) and the Rules framed there under and the administrative directions issued by the authorities under the said Act.
10) When the on the reasons taken on record, the Commissioner HECE Department is satisfied that on the interest of the administration of this temple and management of its properties and income appointment of an Executive Officer is necessary, he may appoint an Executive Officer under Section 45 of the HF&CE Act 1959 to function along with the Trustees of the temple assigning his powers and duties.
11) Any doubt arising in respect of operation any revision made in this Scheme shall be referred to the Commissioner whose decision shall be final.
12) The Scheme of Administration issued herein shall come into force from the date of its publication in the Tamil Nadu Government Gazette.
45.The amended Scheme was published in the Gazette on 14.06.2017. The amendment of the Scheme by the Joint Commissioner has been questioned in A.No.4954 of 2017 seeking the appointment of an Officer of the Court with a direction to conduct the election of the Board of Trustees.
46.There have been untold delays and hurdles in the conduct of elections to the post of trustees to the temple Board. This is apparent from, and also caused by, the slew of writ petitions that are regularly filed by interested persons claiming that the affairs of the temple are being mis-managed, funds are being diverted, the electoral roll is not being maintained properly and that the intervention of the Department in the affairs of the temple is assuming a 32 permanent colour, though the initial appointment was ad-interim and solely temporary.
47.The above factual position has created an indelible impression in my mind that the interests of the temple are not being optimally served either by the trustees or by officials of the department. There has to be a mechanism in place by which the management of the temple is proper and brought in line with both with the traditions of the community as well the 1959 Act. The allegations made by both parties in the course of the litigation run counter to the confidence that the court must feel in regard to the conduct of the affairs of the temple. Such confidence is wholly absent in the present case. I will presently address this aspect of the matter after having dealt with the arguments advanced by the parties on merits.
48.It is the sheet anchor of the argument of the petitioners/applicants before me that so long as the order of the Division Bench dated 21.02.2994 stands, the Department is eschewed from interfering in the affairs of the temple. A larger issue raised is that no power of interference is available to the Department under the provisions of the 1959 Act in the case of a scheme temple and it is only the scheme court that holds such power.
49.Per contra, the respondents would argue that authorities have been granted ample and sufficient powers under the Act to frame, or modify/alter a 33 scheme where it was felt that the clauses are repugnant to the provisions of the Act. They point out that the case of O.Radhakrishnan relied upon by the Division Bench to conclude that the Commissioner does have the power to intervene in the affairs of the temple, stands overruled by the Hon’ble Supreme Court in the case of T.Lakshmikumara Thathachariar vs. Commissioner, HR&CE and others (1998 (6) SCC 643), specifically, paragraphs 13, 14 and 15 thereof.
50.Section 118 of the 1959 Act, while repealing the 1951 enactment, states that any scheme settled or deemed to have been settled, including one settled under Section 92 of the Code of Civil Procedure, 1908 and in force immediately before 30.09.1951shall, so long as it is not inconsistent with the present Act, be deemed to have been made under that Act.
51.It also provides that any provision contained in any scheme settled under the Madras Hindu Religious Endowments Act, 1927 including a scheme settled under Section 92 of CPC, as in the present case, shall be valid to the extent to which there is nothing contained therein which is repugnant to any provision contained in the 1959 Act or the Rules made hereunder. In the event of any such conflict, it is the latter provision, i.e., the provisions of the 1959 Act that shall prevail and the former, to the extent of such repugnancy, shall be void.
34
52.The protection set out under Section 107 of the 1959 Act to the effect that nothing contained in the 1959 Act, save as otherwise provided in Section 106 of the Act, and in Article 25(2) of the Constitution of India, will be deemed to confer any power or impose any duty in contravention of the rights conferred on any religious denomination or any section thereof by Article 26 of the Constitution, is unavailable in the present case, as admittedly, the religious institution in question does not constitute a denomination.
53.The primary argument advanced by the petitioners/ applicants is that the 1907 suit is pending on the file of this Court and thus amendment to the Scheme decree could be effected by this Court only. They rely upon the decision of the Bench in O.S.No.108 of 1987, wherein, the Bench has, specifically granted liberty to the parties to move the Scheme Court for modification in the Scheme or seek any clarifications therein and as this is precisely what the applicants havedone now, they would argue that the applications are liable to be ordered as prayed for.
54.They argue that in the light of the decision of the Division Bench, the same benefits as are available to a Denominational must be available to the temple in question as well. Moreover, the reason for the proposed intervention is the procedure set out for constitution of the Board of Trustees, the Scheme providing for election of trustees and the Act requiring selection or nomination 35 of trustees. They would argue that the provisions of the 1959 Act do not anywhere, prohibit the conduct of elections as provided for in the Scheme.
55.The respondents argue that just as the Scheme formulated and recognized the rights of the Beri Chetty communityto administer the temple, the present Scheme has taken note of the priority to be accorded to members of the community while, at the same time seeking to bring the management of the temple in line with the prescription of the Act. This power vests in the Joint Commissioner under Section 64(2) of the 1959 Act and has been, according to the respondents, rightly exercised in the present case.
56.This then is the first issue that arises for resolution in this batch of matters, as to the width of powers available to the Department to intervene in management of a temple after enactment of the 1959 statute and where a Scheme has been settled under Section 92 of the CPC.
57.Having considered the submissions of both sides and perused the documents relied upon as well as the cases cited, I am of the view that the respondents must succeed. The scheme of the successive legislations enacted for regulation of Hindu religious institutions, is illustrative. The Madras Hindu Religious and Charitable Endowments Act 1927 contained Section 65 that provided for modification or cancellation of Scheme framed under the CPC. Section 75 deemed Schemes settled under Section 92 of the CPC to have been 36 framed in terms of the 1927 Act.
58.Likewise, the 1951 Act contains Section 58 that, in terms of clause (6) thereof, vested power in the Deputy Commissioner to modify existing schemes settled under the previous enactment, the 1927 Act. Sections 103 (d) and (e) of the 1951 Act deemed schemes framed earlier, under the CPC as well as under the 1927 enactment, as one framed in terms of the 1951 Act.
59.In parametria with Sections 65 of the 1927 Act and 58(6) of the 1951 Act, the 1959 Act contains Section 64 that confers powers upon the Joint Commissioner to modify Schemes in currency at the time of its enactment.
60.Then again, Sections 75 and 75 A of the 1927 Act and Section 103(d) and (e) of the 1951 Act are in parametria with Section 118(2)(b) of the 1959 Act, and deem that schemes framed under the CPC, the 1929 and the 1951 enactments have been passed in terms of the 1959 Act.
61.The intention behind the legislations as seen in sequence, is that the Department has consistently held to itself the power to modify schemes framed under the earlier enactments, subject to the restrictions and conditions imposed in that regard. This is a well-settled position as can be seen from the judgement of the Hon’ble Supreme Court in the case of T.Lakshminarayana Thathachariar. In paragraphs 13 to 15, Bench states as follows, also holding the conclusions of this Court in O.Radhakrishnan’s case to be erroneous:
....37
13. The appellant, however, relied upon another judgment of the Madras High Court in the case of O.Radhakrishnan v.
Manickam². The Court in that case was concerned with the power of the Commissioner to modify or cancel any scheme in respect of a math under Section 65 of the Act of 1959. The Court, however, in the course of its judgment also interpreted Section 118(2)(a) of the Act of 1959 and held that this section makes no reference to a scheme settled or deemed to have been settled by a court.
14. The interpretation put in this judgment on Section 118(2)(a) in the context of Section 65 does not appear to be correct. In order to correctly analyse the provisions of Section 64(5)(a) in the context of Section 118(2)(a), it is necessary to analyse the two sections. Section 118 is a section dealing with repeals and savings. Under sub-section (1), the said Act of 1951 Dis repealed. Under sub-section (2) notwithstanding such repeal, certain things are saved. Under clause (a) of sub-section (2), the following are saved:
(1) Rules, notifications, certificates issued or deemed to be issued under the Act of 1951.
(2) Orders passed or deemed to be passed under the Act of 1951.
(3) Decisions made or deemed to be made under the Act of 1951.
(4) Proceedings or action taken or deemed to be taken under the Act of 1951.
(5) Schemes settled or deemed to be settled under the Act of 1951, and (6) Things done by:
(a) the Government;
(b) the Commissioner;38
(c) the Joint Commissioner,
(d) the Deputy Commissioner,
(e) the Assistant Commissioner; and (the Area Committee or deemed to be done by these authoritiesunder the Act of 1951.
These are all now deemed to be done under the Act of 1959 and these are deemed to have been done by the appropriate authority under the Act of 1959. Thus all these actions under the Act of 1951 are saved by virtue of Section 118(2)(a). Thus, schemes settled or deemed to be settled under the Act of 1951 are expressly saved. In this context, if one looks at Section 64(5)(a) which deals with the power of the Joint Commissioner or the Deputy Commissioner or the Deputy Commissioner has been given the power to modify or cancel the following schemes:
(1) a scheme settled under Section 64(1) (the Act of 1959); (2) a scheme settled or modified by the Board under the Act of 1927;
(3) a scheme deemed to be settled under the Act of 1927; (4) a scheme settled or modified by the Joint Commissioner, Deputy Commissioner or Commissioner under the Act of 1959; (5) a scheme settled or modified by the court in a suit under Section 70(1) or in appeal under Section 70(2) of the Act of 1959; and (6) a scheme deemed to be settled or modified by the court under Section 118(2)(a).
Therefore, under Section 64(5), apart from the schemes framed under the current Act of 1959, the scheme settled by the Board as well as by the court under the Act of 1927 or deemed to be so settled are covered by Section 64(5)(a). Similarly, schemes which are settled or deemed to be settled under the Act of 1951 are covered by the last part of Section 64(5). The 39 reference in the last part of Section 64(5)(a) to Section 118(2)(a) is for the purpose of including in Section 64(5)(a) all those schemes settled or deemed to be settled under the Act of 1951 and saved by Section 118(2)(a). In Section 64(5)(a), the words "by the court" have a reference to schemes which were settled or deemed to be settled or modified by the court under the Act of 1951. In respect of schemes deemed to be settled by the court under the Act of 1951, the reference is clearly to the schemes covered by Section 103(d) of the Act of 1951. All those schemes which were so settled or modified or deemed to be so settled or modified by the court under Section 103(d) of the Act of 1951, are now covered and validated under Section 118(2)(a). These schemes so validated and continued under the Act of 1959 can also be modified under Section 64(5)(a) of the Act of 1959.
15. Therefore, under Section 64(5)(a), all schemes in force deemed to have been settled or modified by the court under the Act of 1951 and covered by clause (a) of sub-section (2) of Section 118, are subject to modification or cancellation under the provisions of Section 64(5)(a). The decision of the Madras High Court in the case of O. Radhakrishnan v. Manickam² does not give, in this context, a correct interpretation of law. The scheme in the present case can be modified under Section 64(5)(a) of the said Act of 1959. What is more, it was expressly so held in the case of this very scheme by the Madras High Court in the case of R. ThathaDesika Thathachariar v. Dy. Commr., H.R.E.¹.
16. It is next contended that the provisions of Section 64(5) are an attempt by the legislature to nullify orders of the court in the form of schemes framed by the court under earlier legislations and, therefore, Section 64(5) must be considered as unconstitutional being an attempt to set aside or modify a decree of the court. The High Court has rightly held that this is not a case of passing a legislation in order to nullify the 40 interpretation of law given in the judgment of a court of law.
The schemes which were framed by the courts under earlier legislation were schemes which were capable of modification or cancellation in accordance with law even under the legislation under which such schemes were framed. While repealing the earlier legislation when the new legislation came into force, the power to modify and cancel such schemes was expressly transferred under the new legislation to the authorities specified therein. Under the present legislation 9 of 1959, the authority which has the power so to modify the scheme is the Deputy Commissioner or Joint Commissioner. We do not see any attempt to set aside any decree of the Court by legislation in the present case.
....
62.Thus, the power of the respondents to intervene in the management of Hindu religious institutions, where such management is found to be negligent or contrary to the interests of the religious institution concerned, cannot be questioned. The decision of the Division Bench does not, come to the aid of the petitioners/applicants in this regard.
63.The judgement in Thathachariar’s case, has been subsequently been followed by the Hon’ble Supreme Court in the case of Commissioner, Hindu Religious and Charitable Endowments Administration Department, Madras vs. P.S.Sethuraman ((1999) 2 SCC 327) and A.V.G.P.Chettiar and Sons vs. T.PalaniswamyGounder((2002 (1) RentLR 697), the latter reading as follows:
....41
26. The Trust deeds in question had been construed by the Madras High Court itself while allowing the revision application filed by the respondent against the order granting leave to the appellants to sue under Section 92 in respect of the suit property. It had been held that the Trust deeds showed that "the endowment is a religious endowment or religious charity within the meaning of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959".
27. Under the Endowments Act, the supervision and administration of "religious endowments" are vested in a hierarchy of officials consisting of the Commissioner, Joint Commissioner, Deputy Commissioner and Assistant Commissioner. The Endowments Act contains elaborate provisions inter-alia for the maintenance and alienation of immovable property of a religious endowment. Section 5 of the Endowments Act provides for certain Acts not to apply to Hindu Religious Institutions and Endowments. The excepted enactments include Section 92 of the Code of Civil Procedure, 1908. Section 108 of the Endowments Act provides:
"Bar of suits in respect of administration of management, or religious institutions, etc. No suit or other legal proceedings in respect of the administration or management of a religious institution or any other matter or dispute for determining or deciding which provision is made in this Act shall be instituted in any Court of Law, except under, and in conformity with, the provisions of this Act".
28. In other words, by Section 5 and 108 of the Endowments Act, the jurisdiction which would otherwise have vested in the Civil 42 Courts to grant relief under Section 92 CPC in respect of public, religious or charitable trusts has been taken away and vested in authorities constituted under the Endowments Act. ....
64.This issue is held against the petitioners/applicants, though I hasten to state that such power of intervention is not to be exercised, unfettered. It is to be tempered and exercised in a controlled fashion in line with Section 23 of the Act that states that ‘subject to the provisions of this Act, the administration of all temples (including specific endowments attached thereto) and all religious endowments shall be subject to the general superintendence and control of the Commissioner; and such superintendence and control shall include the power to pass any orders which may be deemed necessary to ensure that such temples and endowments are properly administered and that their income is duly appropriated for the purposes for which they were founded or exist, provided that the Commissioner shall not pass any order prejudicial to any temple or endowment unless the trustees concerned have had a reasonable opportunity of making their representations, and other safeguards provided under the Act and connected Rules.
65.Though some arguments have been advanced on the aspect of violation of principles of natural justice, I do not think it necessary to interfere 43 on this ground in light of the order that I have passed as contained in the paragraphs to follow.
66.I now come to the second argument on the question as to whethertrusteeship under the scheme would constitute hereditary trusteeship as defined under Section 6 (11) of the 1959 Act. The specific contention raised is that Section 47 in terms of which an Executive Officer has been appointed, would stand attracted only in cases where the religious institution in question has no hereditary trustees.
67.Reliance is placed on the following decisions to buttress their arguments that a large body of persons belonging to a particular community can, and should be construed to be hereditary trustees and that the appointments of trustees are governed by long standing ‘usage’. (i)Kodi P.Muthirala Pillai vs. G.Thyagarajaswami Pillai and others (1964 1 MLJ 230) (ii)V.Sudalai Nadar & Others vs. Commissioner, HR&CE Department (CDJ 2017 MHC 4566 & 2017 (3) MWN (Civil) 442) (iii)A.N.RamaswamiIyer& Others vs. The Commissioner, The Hindu Religious and Charitable Endowments (Administration) Madras & Another (CDJ 1975 MHC 188)(iv) Commissioner, HR&CE Department vs. Maligai and Shop Varthagar Sangam.
68.According to them, the Beri Chetty community who reside within Madras Corporation and who are followers of Sri Abinava Dharma Sivachariar have a pre-existing right to Trusteeship. Their succession to office is regulated by 44 usage and they rely upon the specific language in order of this Court dated 25.01.1921 which confers customary rights on the Beri Chetty community to administer and manage the temple as trustees.
69.According to them, the customary right conferred to them must be equated with the term ‘usage’ deployed in Section 6 (11). The enrolment of Members which alone gives them the right to votewill not militate against their claim of hereditary trusteeship because requirements such as enrolment and voting are only procedural enumerations which cannot override their automatic and pre-existing right.
70.They further point out that that the newly framed Scheme by the Department under Section 64(5) of the 1959 Act itself recognizes the customary rights of the Beri Chetty community to act as trustees.
71.Section 47 which provides for the appointment of an Executive Officer will not be applicable in this case as the temple is a community temple and as the Scheme specifically provides for a procedure for constitution of the Board as well as the details of such constituents. This cannot be overridden in light of the judgment of the Division Bench which is binding upon all parties including the H.R. & C.E. Department which was a party to that case, they say.
72.The submissions of the respondents are that the rights of the Beri Chetty community have been recognised in both the original as well as amended 45 Scheme now framed. There is no question of the trustees being considered as hereditary, as they earlier assumed the post by election, and now by selection/nomination, and not by way of succession. In this regard, they rely upon the judgements in the case of Sambudamurthi Mudaliar vs. The State of Madras and another ((1970 (1) SCC 4), The State of Madras vs. Ramakrishna Naidu (70 LW 645), TiruvengadaVaradachariar and others vs. Srinivasa Iyengar and others (AIR 1973 Madras 281) and A.V.G.P.Chettiar and Sons vs. T.PalaniswamyGounder(2002 (1) RentLR 697 : 2002 (2) RCJ 55 : 2002 (1) R.C.R. (Rent) 574.
73.Let me now briefly be discuss the cases relied upon by the parties.
74.In Kodi P.Muthirala Pillai(supra), the application was for a declaration that the applicant was a hereditary trustee of the Sri Gurunathaswamy Temple. He had been elected as per prevailing usage by the Koilkudigals and took the stand that he should continue as the sole exclusive hereditary trustee. The claim was rejected.
75.Incidentally he also states that if the Koilkudigals were deemed by usage, to be hereditary trustees, they will, as a body of individuals,all constitute joint trustees. All members of the community would thus form one larger collective out of which, for the purpose of continuance and focus in administration, they would elect one as a trustee.
46
76.The learned single Judge held that usage provided for election of a competent trustee and no such exclusive or continuing right could be claimed. Such election is only for convenience and to facilitate proper management and will not confer any exclusive right of trusteeship, much less a hereditary right to trusteeship. The applicants’ reliance on this incidental finding, will not advance their case. The Koilkudigals in that case and the Beri Chetty community who are followers of Shivachariar in this case, would no doubt form the corpus of eligible trustees. However, and in my considered view they cannot, by any stretch of imagination, all be deemed to be trustees as it is only the process of election that would select some for such post.
77.They also rely on a decision of the learned single Judge of this Court in V.Sudalai Nadar. In that case, the applicants had sought a declaration of hereditary trusteeship in the Sri SubramaniyaswamyKoil on the ground that the temple was being administered by members of the Hindu Nadar community and thus, the general body of the Hindu Nadar community would be entitled to trusteeship in administration of that temple. The learned single Judge found, as a fact, that both by usage and succession it was the members of the Hindu Nadar community, who were in management of that temple, granting the declaration sought.
78.In A.N.RamasamiIyer, the plaintiffs had sought rights of trusteeship in two temples in Tirunelveli District. This was contested by the Department stating 47 that succession was not regulated by usage in the temple. The case of the plaintiff was accepted, the Court holding that there was a usage recognizing the members of the Brahmin Community as hereditary trustees of the Temple.
79.All the cases relied upon by the petitioner are distinguishableon facts as noticed in the above paragraphs. Coming to the cases relied upon by the respondents, in my considered view, the issue raised has been squarely answered by the Hon’ble Supreme Court in the case of Sambudamurthi Mudaliar(supra). The question that came to be considered was as to whether the appellant therein was a hereditary trustee within the meaning of section 6(9) of the 1951 Act, that is in parametria with Section 6(11) of the 1959 Act that defines hereditary trustee as follows:
6. Definitions. In this Act, unless the context otherwise requires, ....
(11) “Hereditary trustee” means the trustee of a religious institution, the succession to whose office devolves by hereditary right or is regulated by usage or is specifically provided for by the founder, so long as such scheme of succession is in force; The definition includes three types of rights: (1) succession to the office of trusteeship devolving by hereditary right; (2) succession to such office being regulated by usage; and (3) succession being specifically provided for by the founder on condition that the scheme of such succession is still in force. The conclusions of the court are as follows:
48
....
3. It is not the case of the appellant that the trustees of the temple of the Kumaran Koil are hereditary trustees because their office' devolves by hereditary right or because succession to that office is specifically provided for by the founder. The contention on behalf of the appellant is that the succession is "regulated by usage". It was said that according to the usage of the temple the trustees were elected for a period of one year each at a meeting of the members of the SangunathaMudaliar Community and so the appellant must be held to be a trustee within the meaning of s. 6(9) of Act 19 of 1951. In our opinion, there is no warrant for this argument. The phrase "regulated by usage" in s. 6(9) of the Act must be construed along with the phrase "succession to this office"
and when so construed that part of the definition would only apply where the ordinary rules of succession under the Hindu law are modified by usage and succession has to be determined in accordance with the modified rules. The word "succession" in relation to property and rights and interests in property generally implies "passing of an interest from one person to another" (vide in Re: Hindu Women's Right to Property Act, 1941 (1). It is now well-established that the office of a hereditary trustee is in the nature of property. This is so whether the trustee has a beneficial interest of some sort or not (see Ganesh Chunder Dhur v. Lal Behary(2) and Bhabatarini v. Ashalata(3). Ordinarily a shebaitship or the office of dharmakartha is vested in the heirs of the founder unless the ,founder has laid down a special scheme of succession or except when usage or custom to the contrary is proved to exist. Mukherjea J., in AngurbalaMullick v. DebabrataMullick(4) delivering the judgment of this Court observed:
"Unless therefore, the founder has disposed of the shebaitship in any particular manner--and this right of disposition is inherent in the founder--or except when usage or custom of a different nature is proved 49 to exist, shebaitship like any other species of heritable property follows the line of inheritance from the founder."
In the case of mutts, whose heads are often celibates and sometimes sanyasins, special rules of succession obtain by custom and usage. In Sital Das v. Sant Ram, the law was taken as well settled that succession to mahantship of a mutt or religious institution is regulated by custom or usage of the particular institution except where the rule of succession is laid down by the founder himself who created the endowment. In that case the custom in matters of succession to mahantship was that the assembly of bairagis and worshippers of the temple appointed the successor; but the appointment had to be made from the disciples of the deceased mahant if he left any, and failing disciples, any one of his spiritual kindred. Such a succession was described as not hereditary in the sense that on the death of an existing mahant, his chela does not succeed to the office as a matter of course, because the successor acquires a right only 'by appointment and the authority to appoint is vested in the assembly of the bairagis and the worshippers. In Sri Mahant Paramanda Das Goswami v. Radhakrishna Das, the Madras High Court took the view that where succession to the mahantship is by nomination by the holder in office, it was not a hereditary succession. In that case Venkatasubba Rao, J. said:
"If the successor owes his title to nomination or appointment, that is, his succession depends on the volition of the last incumbent and does not rest upon independent title, I am inclined to the view that the office cannot be said to be hereditary."
Krishnan J., stated as follows:
"Where succession is by nomination by the holder in office of his successor it seems to be impossible to contend that it is a hereditary succession. Hereditary succession is succession by the 50 heir to the deceased under the law, the office must be transmitted to the successor according to some definite rules of descent which by their own force designate the person to succeed. There need be no blood relationship between the deceased and his successor but the right of the latter should not depend upon the choice of any individual."
It is true that the artificial definition of hereditary trustee in s. 6(9) of the Act would include even such cases.
4.But the election to the office of trustee in the present case is for a fixed period of one year and not for life. It is, therefore, difficult to hold that the office of the appellant is hereditary within the meaning of s. 6(9) of the Act. It is not possible to say that there is a succession of As office to another when on the efflux of the period for which A was appointed, there is a vacancy and B is elected to that vacancy. It is quite possible that for that vacancy A himself might be reelected because a retiring trustee is eligible for reelection. The possibility of A being the successor A himself is not merely an anomaly, it is an impossible legal position. No man can succeed to his own office. In Black's Law Dictionary the word 'succession' is defined as follows:
"The devolution of title to property under the law of descent and distribution.
The right by which one set of men may, by succeeding another set, acquire a property in all the goods, movables, and other chattels of a corporation.
The fact of the transmission of the rights, estate, obligations, and charges of a deceased person to his heir or heirs."
5.The view we have taken is borne out by the reasoning of the Madras High Court in State of Madras v. Ramakrishna Naidu. ....
80.In conclusion, reference is made to the decision of this Court in 51 Ramakrishna Naidu’s case (70 Law Weekly 643)wherein the issue that arose concerned the appointment of trustees in the Sri Parthasarathi Swami Temple in Madras. The temple was governed by a scheme and provided for election of Dharmakarthas from within the electoral role maintained in the temple. The Commissioner sought to appoint a trustee in exercise of powers under Sections 39(1) and 42 of the 1951 Act, which was challenged by the trustees on the ground that the Commissioner had no power to appoint a trustee under Section 42 in the case of a scheme temple, as the trustees of the temple were hereditary trustees.
81.The Division Bench, considering Section 42, which declared the power to appoint trustees under Section 39, held that such power was properly exercised, notwithstanding that the scheme for administration of that temple had been settled under Section 92 of the CPC. With the coming into force of the 1951 Act, though the appointment of trustees had been regulated by usage, Sections 39 and 42 would be applicable from 1951 onwards.The Court went into the question of ‘hereditary trustee’, noting that the scheme provided for filling up vacancies of trustees by election.
82.The term ‘hereditary trustee’ under the 1951 Act is in tandem with the definition of hereditary trustee under Section 6(11) of the 1959 Act. In that case, as in the present, the case of the trustees is that their succession to office is specifically provided for by the founder and is regulated by usage. On a 52 holistic construction of the definition of hereditary trustee, the Bench states that succession, as provided for under the scheme cannot be said to be governed by usage,when it was the provision of the scheme that governed such succession.
83.A provision under a scheme cannot be equated to regulation by usage as understood under Section 6(11) of the present Act, the Bench states, in the following terms:
It is a settled preposition that the office of the hereditary trustee is in the nature of the property. Thus, ordinarily, the office of Dharmakarthas or trustee will vest in the airs of the founder, unless founder has laid down special scheme of succession or where usage or custom to the contrary is proved to exist. Thus, the rules as would govern the succession to the office of the trustees or as per the scheme formulated, which does not in the present case, contemplate for any blood relationship between the predecessors and successors trustee, but will depend on the procedure set out under the scheme.
84.In TiruvengadaVaradachariar and others vs. Srinivasa Iyengar and others (AIR 1973 Madras 281), the Bench states as follows:
8. With great respect to the learned Judge, we are unable to agree with the above view. As already pointed out, the question as to whether a particular institution was a public temple or not did not directly arise for consideration before the learned Chief Justice. It was only incidental to the other disputes arising in a suit for redemption. That was obviously the reason for the Bench, in the very first sentence of its judgment, to agree with the learned Chief Justice holding that the Civil Court has jurisdiction to decide whether a particular institution is a public temple or not when such a question arises and incidentally to the other disputes. The Bench has not made any reference to the casual observation of the learned Chief Justice that the bar would operate only in a case 53 where the dispute is between the trustees of the institution on the one hand and the Board on the other. Neither the language of Section 84 of the 1927 Act nor the language in the two corresponding sections of the 1951 Act and the1959 Act warrants such an inference. Whatever be the policy underlying the 1927 Act, it is clear from the scheme of things adumbrated in the 1951 Act and the 1959 Act that the Legislature has conferred exclusive jurisdiction upon the Deputy Commissioner to decide the disputes and maters enumerated in the relevant sections. We have already extracted Section 63 of the 1959 Act and it would be seen therefrom that there are some matters in which the Board may not be interested. For instance, the Board may not be interested whether a particular person is entitled by custom or otherwise to any honor. The privilege as to who is entitled to an honor would arise only if rival claims are put forward by two private individuals. It is true that the Deputy commissioner cannot decide a dispute as to who among the rival claimants is entitled to succeed to an office. If a particular office of trustee is admitted to be hereditary, the question as to whether A or B is entitled to succeed is beyond the jurisdiction of the Deputy Commissioner under Section 63 of the Act. But where A asserts that an office is hereditary and claims appropriate relief on that basis and where B denies that the office is hereditary, but claims to have been appointed as a trustee by the Endowments Board, in our view such a case would fall squarely within the ambit of Section 63 of the 1959 Act, even though the Board is not impleaded as a party. ..........
11. In the instant case, as we have already pointed out, the plaintiff's claim to be hereditary trustees along with the defendants 3 and 4. According to them, the office of hereditary trustees has devolved from generation to generation only in their family, and it is only on the basis of such assertion of title that the relief of possession is asked for from defendants 1 and 2. It is true that they have not in so many words asked for a declaration that they and 54 defendants 3 and 4 are hereditary trustees. But the defense of the first defendant is that the office is not hereditary, that, on the other hand, the office has been filled up by the Area Committee previously and subsequently by the Board and that only by virtue of such appointment, he the first defendant is continuing in possession. The fact that the Deputy Commissioner cannot grant the relief of possession is not a ground to hold that the suit is maintainable. The form of relief is not the sole criterion to decide the question of maintainability of the suit. By ingenious drafting of the plaint, the necessary relief of declaration that the plaintiff and defendants 3 and 4 are hereditary trustees is omitted. But on a reading of the plaint as a whole it irresistibly follows that only if the plaintiffs establish that they and defendants 3 and 4 are hereditary trustees, they can succeed in getting the relief's asked for. One of the main issues that arises for consideration is whether the plaintiffs and defendants 3 and 4 are hereditary trustees. For deciding that issue, express provision is made in Section 63 of the Act, and the trial Court rightly held that the suit is barred by Section 108 of the Act.
85.The claim of the petitions/applicants to the effect that the post of trusteeship is hereditary, is rejected. Some arguments have been advanced on the strength of the status of the temple as a community temple, entitled to salutary treatment by the Department.
86.In R.Murali and others vs. KanyakaP.Devasthanam and Charities and others (2005 (6) SCC 166), the Hon’ble Supreme Court heard an appeal against an order passed by the Division Bench of this Court revoking leave granted by the learned Single Judge under Section 92 of CPC for filing of a suit for reframing a scheme of administration of Sri KanyakaParameshwari 55 Devasthanam and charities. The learned Single Judge had granted leave on the strength of the trustees having obtained a decree of declaration and injunction on their claim of protection under Article 26 of the Constitution.
87.Since the institution had been declared to be religious denomination under Section 107 of the 1959 Act, the learned Single Judge had held that autonomy under Article 26 of the Constitution was so guaranteed to it.This Judgment was reversed by the Division Bench, which held that the decree granting the Institution denomination status was only incidental and that there could be no restraint placed upon the authorities under the 1959 Act from modifying the scheme of administration or management of the institution. Such a restriction the Bench held, would be contrary to Section 64 of the Act.
88.The provision of Article 5(2) refers inapplicable Sections 92 and 93 of the CPC to Hindu Religious Institutions and endowments.Then again, Section 107 of the 1959 Act recognizes and protects freedom in matters of management of religious affair by denominations as a fundamental right under Article 26 of the Constitution.
89.The Judgment passed by the City Civil Court had gone on further to state that the scheme could not be modified by the authorities. This observation was held by the Division Bench to be incidental and obiter dicta, as it was contrary to Section 64. The decision of the learned Single Judge, who had 56 granted leave on the strength of the declaration granted by the City Civil Court, had been reversed.
90.The Hon’ble Supreme Court concurred with the findings and conclusions of the learned Single Judge holding that the Court was bound by the declaration that the religious institution constituted a denomination. In such a case and calling into aid the protection under Article 26 of the Constitution, the authorities under the 1959 Act, were held to be powerless to modify an existing scheme of administration or from framing one afresh.
91.In the present case, the admitted position is that the temple has not been successful in obtaining the status of a denomination. It prayedfor a declaration to the effect that it constitutes a religious denomination has been considered and expressly rejected. The decision in the case of R.Murali (supra) is clearly distinguishable for this reason and does nothing to advance the case of the petitioners/applicants.
92.In the case of Sri VedanthaSthapana Sabha, Nanganallur V. Commissioner, HR&CE and another (1997 (2) LW151), affirmed in Commissioner, Hindu Religious and Charitable Endowments (Admn.), Madras and another vs. VedanthaSthapna Sabha (2004 (6) SCC 497), the Hon’ble Supreme Court has settled the position that the possibility of re-election to the position of trustee, militate against a claim of trusteeship and the benefits sought 57 to be drawn for a community temple.The judgement is distinguished by the petitioners/applicants pointing out that the temple in that case was not a community temple.
93.Though not possessed of denominational status, the temple has been nurtured by the community from inception. There have, no doubt been several aberrations in management and administration over the years and I have in the paragraphs to follow, held that the intervention of the Department in such circumstances is justified. However, such intervention does not change the status of the temple from that of a community temple and this position, accompanied by all incidents thereto, such as traditions and conventions of the community, must be respected and followed.
94.The above narration captures, in brief, the trajectory of the litigation by the trustees as well as devotees of the temple over the years. The nature of the relief sought, both in the applications and the writ petitions, indicates clearly the dissension existing and brewing within the management as there were differences of opinion on the eligibility of members to manage the temple, the formulation of the voters list, the safety and security of temple assets, to name a few.
95.The sole meeting point in all the dissension was the unanimous request of all learned counsel appearing in this matter including the Special Government Pleaders appearing for the official respondents, for the 58 appointment of a Commissioner to enquire into the assets of the temple and inventorise the same.
96.Upon concurrence expressed by all parties, Justice N.V.Balasubramanian, Former Judge of this Court, had been requested, and has graciously acceded to the request to act as Judge Commissioner to conduct enquiry into the management of the temple and inventorise its assets, both movable and immovable. He was thus appointed by order of this Court passed on 11.09.2018 for the aforestated purpose.
97.The Learned Judge Commissioner has conducted a thorough scrutiny of the financial position of the temple, looking into the available documents and enquiring with the officials, both present and past. An inventory of assets has been made and discrepancies in the assets have been duly flagged. The Learned Judge Commissioner has pointed out lapses in security and suggested various safety measures. He has highlighted the need for enhanced security and has given his recommendations for proper assimilation and protection of the assets under a comprehensive report accompanied by four (4) annexures.
98.The detailed report of the learned Judge Commissioner is a clarion call that all is not well with the temple management and protection of the assets. Several missing items have been noticed and reported. Some of the documents, such as minutes books and other assets as well as keys to the bank 59 lockers are stated to be in the custody of the erstwhile trustees. Some assets are stated to have even been pledged by erstwhile trustees for their personal benefit.
99.The Learned Commissioner has made the following suggestions:
i) I find that the Temple, though located in busy locality of George Town area, is maintained properly. However I find there were not sufficient security guards for the Temple and the present security staff is not sufficient for the Temple. Hence I suggest that the security should be strengthened so that the properties of the Temple are protected.
ii) My next suggestion is valuable jewellery are now held with several persons – some are with Archakas, some with erstwhile Trustees, some with HR & CE officials. My suggestion is that all the valuable items should be under the control of one Authority, who will be the ultimate control of all the valuable articles and valuable items as required for nithya-padi puja and / or at the time of festival occasion, may be handed over to the Chief Archaka on obtaining the proper receipt and proper record should be maintained for delivery and receipt of the said valuable articles.
iii) Some of the Vahanams belonging to the Temple are kept in the premises of the persons who donated the same, due to want of space. They may be permitted to retain the Vahanams however under the control of the Authority in-charge of Temple.
iv) More CCTV camera should be installed in the Temple, particularly in the Shri Muthukumaraswamy Devasthanam, Uthsava Mandapam and also in places where valuable metal idols are placed.
v) CCTV to be installed, wherever Vahanams are kept, particularly in places where gold and silver chariots are kept.
vi) Hundial collection is one of the main source of income for the Temple. CCTV camera should be installed, if not installed so far, near the Temple hundials so that there can be complete 60 surveillance of collection of hundies and also from the office collecting the money from devotees for Temple purposes.
vii) The main dispute seems to be the educational institution both schools and colleges.
viii) My further suggestion is that old records of the Temple showing the endowment should be scanned and saved digitally.
ix) I also found that one immovable property (s.No.8) has been endowed for the purpose of community people visiting Chennai for medical treatment for limited period of stay in the house. I find that charity has not been performed, as property is in the possession of various tenants.
x) I have also given suggestion with reference to the property at 175, Thambu Chetty Street for running the medical dispensary by the Temple.
xi) I also found encroachment in the streets surrounding the Temple and there may be a direction to police authorities to remove the encroachments in the streets around the Temple so that there can be a free movement of the devotees coming to the Temple and the free movement of the vehicles.
100.Moving forward, it is imperative that the administration and management of the temple be entrusted in the hands of a Board of Trustees who have solely the interests of the temple at heart. G.O.(Ms).No.12, dated 13.01.2014 appoints an ex-officio Thakkar only as an interim measure and till the election of trustees is complete. This is also in tune and tandem line with the Rules framed by the Department for governing the appointment of Executive Officers and which prescribes a limited period for the tenure of an Executive Officers to tide over the dislocation in affairs caused by vacancies, 61 and ensure proper management, till such time a Board of Trustees is constituted.
101.In Dr.Subramanian Swamy vs. State of Tamil Nadu and others, Sabayanagar Temple vs. State of Tamil Nadu and others &T.Sivaraman and Others vs. State of Tamil Nadu and others ( 2014 (5) SCC 75), a challenge was laid before the Hon’ble Supreme Court by the PodhuDikshitars of the Sri Sabanayagar Temple in Chidambaram rejecting their claim for management and administration of that temple.
102.An Executive Officer had been appointed to administer the temple, which came to be challenged by the Dikshitars, stating that they constituted a religious denomination and Article 26 did not, in such circumstances, brook any interference in their affairs. Though the State challenged the decision of the Madras High Court to aforesaid effect, the appeals were dismissed as the Notification appointing the Executive Officer was withdrawn.
103.The Hon’ble Supreme Court considered the breadth and width of powers to appoint an Executive Officer under Section 45 of the 1959 Act, concluding that the provision does not contemplate ‘unguided or unbridled functioning’.
104.On the contrary, Rules were directed to be framed by the State Government to the extent to which legislature intended to regulate and control 62 religious institutions, particularly in the event of mal-administration. At paragraph No.65 onwards, the Hon’ble Bench has this to say:
65.Even if the management of a temple is taken over to remedy the evil, the management must be handed over to the person concerned immediately after the evil stands remedied.
Continuation thereafter would tantamount to usurpation of their proprietary rights or violation of the fundamental rights guaranteed by the Constitution in favour of the persons deprived. Therefore, taking over of the management in such circumstances must be for a limited period. Thus, such expropriatory order requires to be considered strictly as it infringes fundamental rights of the citizens and would amount to divesting them of their legitimate rights to manage and administer the temple for an indefinite period. We are of the view that the impugned order is liable to be set aside for failure to prescribe the duration for which it will be in force.
66.Super-session of rights of administration cannot be of a permanent enduring nature. Its life has to be reasonably fixed so as to be co-terminus with the removal of the consequences of maladministration. The reason is that the objective to take over the management and administration is not the removal and replacement of the existing administration but to rectify and stump out the consequences of maladministration. Power to regulate does not mean power to supersede the administration for indefinite period.
67.Regulate is defined as to direct; to direct by rule or restriction; to direct or manage according to the certain standards, to restrain or restrict. The word `regulate’ is difficult to define as having any precise meaning. It is a word of broad import, having a broad meaning and may be very comprehensive in scope. Thus, it may mean to control or to subject to governing principles. Regulate has different set of meaning and must take its colour from the context in which it is used having regard to the 63 purpose and object of the legislation. The word `regulate’ is elastic enough to include issuance of directions etc. (Vide: K. Ramanathan v. State of Tamil Nadu &Anr., AIR 1985 SC 660; and Balmer Lawrie & Company Limited &Ors. ParthaSarathi Sen Roy &Ors., (2013) 8 SCC 345)
68.Even otherwise it is not permissible for the State/Statutory Authorities to supersede the administration by adopting any oblique/circuitous method. In Sant Lal Gupta &Ors. v. Modern Coop. Group Housing Society Ltd. &Ors., (2010) 13 SCC 336, this Court held:
“It is a settled proposition of law that what cannot be done directly, is not permissible to be done obliquely, meaning thereby, whatever is prohibited by law to be done, cannot legally be effected by an indirect and circuitous contrivance on the principle of “quandoaliquidprohibetur, prohibetur et omne per quod devenituradillud”. An authority cannot be permitted to evade a law by “shift or contrivance”.”
69. We would also like to bring on the record that various instances whereby acts of mismanagement/maladministration/ misappropriation alleged to have been committed by PodhuDikshitars have been brought to our notice. We have not gone into those issues since we have come to the conclusion that the power under the Act 1959 for appointment of an Executive Officer could not have been exercised in the absence of any prescription of circumstances/ conditions in which such an appointment may be made. More so, the order of appointment of the Executive Officer does not disclose as for what reasons and under what circumstances his appointment was necessitated. Even otherwise, the order in which no period of its operation is prescribed, is not sustainable being ex facie arbitrary, illegal and unjust.
70.Thus, the appeals are allowed. Judgments/orders impugned are set aside. There shall be no order as to costs.” 64
105.Thus, it is a settled position that taking over of the management of a temple must only be to remedy evil in the event of mis-management, if any, and an executive officer is not intended to be a permanent replacement of the existing administration. While the appointment of an Fit Person/EO was perfectly justified since mis-management of the temple is amply clear in the light of the report of the learned Judge Commissioner, the successive and remedial action by way of constituting the Board of trustees has not been done in a timely manner.
106.While the wheels are thus proposed to be put in motion to set right the affairs of the temple and streamline the processes of administration and management, it is imperative that this effort must be driven by a neutral appointee who will oversee and regulate all such affairs till such time the process is complete and self-sustaining.
107.The ideal person would have been Hon’ble Justice N V Balasubramaniamseeing as he was cognizant of all aspects of the functioning of the temple and its endowments and had thoroughly acquainted himself with all aspects of the matter. Unfortunately, he has passed in November 2019 and this Court, the temple and the Department are grateful for his timely and generous assistance.
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108.Hon’ble Justice Chitra Venkataraman, former Judge of this Court was thus requested and has graciously agreed to chair an Interim Committee to comprise theExecutive Officer and leaders of the community to be identified and selected by the Learned Judge Commissioner. The Interim Committee shall look into all aspects of the functioning of the temple such that its affairs are streamlined and regulated in full measure and the functioning of the temple and endowments are rendered transparent and self-sustaining. The modalities of this exercise are left open to be worked out and finalised by the Interim Committee chaired by the Hon’ble Judge.
109.In addition to the action points to be formulated and implemented by the Interim Committee, the following directions are issued:
1)Erstwhile trustees as well individuals/entities in possession of assets and documents pertaining/belonging to the temple shall hand over the same to the Executive Officer on or before 31.01.2022.
2)Efforts for such collection/assimilation be commenced immediately by the Executive Officer, if need be, taking the assistance of law and order authorities.
3)The report of Justice N.V.Balasubramanian specifically notes the absence of Ms.M.Jothilakshmi, Assistant Commissioner, who had not bothered to present herself before him on any of the dates. Suitable action be initiated in this regard by the concerned authorities.66
110.Compliance of the above directions shall be reported to the Interim Committee.
111.Upon comparison of the original and amended schemes, my attention has not been drawn to any clause that, prima facie, militates against the statute or the interests of the temple. Draft Scheme dated 26.04.2017 passed in Suo Motu O.A.No.3 of 1992 taken up under Section 64(5)(a) and (b) of the Act to modify the 1919 Scheme is, in-principle approved, primarily to enable the constitution of the Board of trustees that is pending inordinately. The process shall be commenced forthwith under the auspices and guidance of the Hon’ble Judge and the Interim Committee. A short list of eligible members of the community shall be circulated by the Interim Committee to the concerned departmental authority and the new Board of Trustees shall be constituted within three months from date of first meeting of the Interim Committee.
112.An honorarium of a sum of Rs.1,00,000/- shall be paid to the Hon’ble Judge on a monthly basis.
113.In the light of observations and directions set out above, A.Nos.4953 and 4954 of 2017 are partly allowed, A.Nos.4951, 4952, 4955, 4956, 4957 of 2017 and O.A.No.711 of 2017 are dismissed and A.Nos.3896 and 3918 of 2017 are closed, as the prayer in these applications are not liable to be granted.
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114.Accordingly, W.P.Nos.29658, 29659, 34762 of 2013, 27681 of 2014, 3527 of 2014, 23560 of 2014 and 30371 of 2015 are disposed, W.P.Nos.17599, 18068, 27522 and 27842 of 2014 and 2301 of 2016 are rendered infructuous and the same are dismissed. W.P.No.15026 of 2017 is dismissed. W.P. Nos.28763 of 2013 & 15151 of 2014 are ordered as above. Consequently, allconnected miscellaneous petitions are closed.
115.Upon pronouncement of orders on 22.03.2012 it was represented that two other matters, one a writ petition in W.P.No.5293 of 2017 and another, a suit in C.S.837 of 2018 and connected applications, have been filed, that have a serious bearing on this matter. The issues raised therein touch upon the legality of the societies that manage the educational institutions connected to the temple.
116.As the educational institutions form part and parcel of the Report of the Hon’ble Judge Commissioner, it was felt that it would only be appropriate that those matters are heard and disposed with the present batch of writ petitions and applications and both the orders integrated so that the issues could have a composite resolution. A judicial order was passed by me as aforesaid, on 30.03.2021 and the matters directed to be placed before the Hon’ble Chief Justice for appropriate orders on clubbing, keeping in abeyance order dated 22.03.2021.
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117.The two batches of matters were thereafter listed before me as ‘specially ordered’. The writ petition and suit were listed for completion of pleadings and heard.
118.As far as suit in C.S.No.837 of 2018 is concerned, pleadings are incomplete and written statement is awaited. List on 07.01.2022 to await the same and to frame issues. Draft issues be circulated by then by all parties.
119.The forthcoming portion of the order disposes the writ petition in W.P. No.5293 of 2017, that seeks a writ of certiorarified mandamus calling for and quashing Proceedings No.2104/E/2008 dated 25.03.2010, merging ‘Sri MuthukumaraswamyDevasthana Educational Society’ bearing registration No.319 of 1979 (‘1979 society’) with the ‘SreeMuthukumaraswamy Educational Society’ bearing Registration No.338 of 2008 (‘2008 society’) and directing the third respondent society to handover the management, administration and properties of the educational institution to the petitioner temple administration as well as Application No.9748 of 2018 seeking the appointment of a receiver to take over the management of the educational institutions.
120.The challenge in writ petition is laid by the Sri Muthukumaraswami Devasthanam, which manages the Kandhakottam Temple at Chennai, duly represented by the Fit Person/Assistant Commissioner, to an order passed by the Registrar of Societies arrayed as R2, on 25.03.2010, merging two societies, 69 the Sri MuthukumaraswamyDevasthana Educational Society (‘1979 society’) with the ‘SreeMuthukumaraswamy Educational Society’ (‘2008 society’), the latter arrayed as R3 in the writ petition.
121.The challenge is premised on the following grounds:
(i) The provisions of Section 9 of the Tamil Nadu Societies Registration Act, 1975 (in short ‘Act’) provide for registration of the change of name of a society. Upon merger, the name of the new society must not be one which is similar to the name of the erstwhile societies. In the present case, the 1979 society is called the ‘SreeMuthukumaraswamyDevasthana Educational Society’ and the amalgamated entity continues to be called by the same name, which is contrary to the provisions of Section 9.
(ii) The procedure for merger of society is set out under Section 30 of the Act which states that both the societies intending to merge must call for a general body meetings and pass special resolutions of the attending members to confirm the intention of the societies to merge. In the present case, such special resolutions have not been produced despite several requests and what is circulated is only a general resolution.
(iii) The 1979 society was constituted as abody intended to manage educational institutions set up by the Devasthanam. The by-laws provide, in 70 Article 10, that the society shall comprise of ten members of whom, the members of the Devasthanam shall form part.
122.The merged society which now, admittedly runs the educational institutions, has no connection whatsoever with the Devasthanam and its members constitute a separate and distinct body. The members of the Devasthanam do not form part of the educational society. This constitutes an amendment of the original by-laws and such amendment ought to have, in light of the provisions of Section 14 of the Act, been registered with the Registrar of Societies. This has admittedly, not been done.
123.R3 brushes aside the objections raised in regard to procedure and non-compliance with the statutory provisions, urging that the substantive position in regard to the welfare of the educational institutions must weigh uppermost with the Court. They would maintain that all records in regard to the conduct of the general body meetings and passing of special resolutions were very much available with the societies but they are not in a position to produce them today on account of the long elapse of time.
124.The events in question took place in the year 2010 whereas the present writ petition has been filed only in 2017. If only the petitioner had been more vigilant and moved the present writ petition in time, all records to explain compliance with statutory provisions would have been made available by R3, 71 they say. Per contra and by way of reply, the petitioner pleads ignorance of the proceedings for merger of the societies till 2017.
125.As regards the third ground, the second society has filed a counter stating that its by-laws in resolution to constitution of the governing body was amended vide Resolution No.3 dated 24.04.2006. This took the petitioner by surprise, and upon receipt of the counter, a request appears to have been filed by it on 22.06.2021 before R2, for furnishing of the details of amendments, if and when made.
126.A response has been received from R2 enclosing a copy of resolution dated 24.04.2006. This resolution contains an endorsement that such resolution was presented in the office of R2 on 29.07.2009 and has merely been kept pending in view of the registration of the earlier files not having been completed.
127.This sequence of events accompanied by a copy of the letter of R2 dated 22.06.2021 and the resolution placed before R2 have been filed before this Court under cover of a memo dated 25.06.2021. Interalia, the petitioner also points out that without prejudice to the illegality of the resolution itself, such resolution has been passed only by the governing body (Ml;rpf;FH) and not by the general body of R3 society. In any event, it has not been registered and has thus no force or validity whatsoever.
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128.As an overriding submission, R3 would urge that the petitioner must not be permitted to raise technical objections that would disturb the functioning of the educational institutions. The larger interests of the students must be protected from such technical and peripheral objections and any conclusion that would jeopardise the functioning of the institutions must be eschewed in favour of the student population.
129.Heard all parties. The 1979 society was set up with the specific intention of setting up and managing educational institutions. Its postal address is the same as that of the temple. The by-laws clearly indicate that, out of the ten governing committee members, five were to comprise of trustees elected for the administration of the temple. The details of the Schools and Colleges presently managed under the auspices of the temple (collectively referred to as ‘educational institutions’ are:
1.Sri MuthukumaraswamyDevasthana Hindu Higher Secondary School, situated at old no.17, new no.18, Ponnappa street, Chennai 600 003
2. Sri MuthukuraswamyDevasthanahindu Primary School, Situated at No.4, Subbu Chetty Street, Chennai 600 003
3. Sri MuthukumaraswamyDevasthanaKannapiranPadmavathy Primary School, Bashyam Reddy Street, Otteri, Chennai
4. Sri MuthukumaraswamyDevasthan Venugopal Chettiar higher Secondary School, old no. 17, new no.11 Rottler street, Purasaiwakkam, Chennai.
5. Sri Muthukumaraswamy College, Kodungalyur, Chennai.73
130.The arguments of the petitioner as regards the change of name appear well founded. Section 9 of the Act states that no society shall be registered under a name which in the opinion of the registrar is undesirable and this includes Section 9(1)(c), whereunder a name which is identical to or which closely resembles the name by which a society in existence has been previously registered.
131.In the present case, the impugned order dated 25.03.2010 merging the 1979 and 2008 societies states as follows:
Miz:
tlbrd;idrq;fq;fspd; gjpthsh; mYtyfj;jpy; _Kj;Jf; FkhuRthkpnjt];jhdk; fy;tpr; brayhz;ik (gjpt[ vz;.319/79) vd;wbgahpy; gjpt[ bra;ag;gl;Ls;srq;fk; mnjmYtyfj;jpy; gjpt[bra;ag;gl;l _Kj;Jf; FkhuRthkpnjt];jhdk; fy;tpr; brayhz;ik (gjpt[ vz;.338/08) vd;wrq;fj;Jld; xUq;fpizf;fg;gLfpwJ. (1975-k; tUljkpH;ehLrq;fg;gjpt[ rl;lk; gphpt[ 30(1) kw;Wk; 1978k; tUljkpH;ehLrq;fg;gjpt[ tpjpm29(1) fhz;f nkw;go Miz 2010-k; khh;r; khjk; 25-k; ehs; vd;dhy; ifbahg;gkplg;gl;lJ.
132.The 1979 society has been merged with the 2008 society as a result of which, a new society has been come to be constituted. The name of the resultant amalgamated society must be different and distinct from either of the two names by which the original societies were known. The newly formed society continues to go by the name of the 1979 society which is contrary to Section 9(c) of the Act. This ground is accepted.
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133.The second ground raised is that the amalgamation is by virtue of Section 30, that provides for the passing of special resolution prior to such amalgamation. Section 16 of the Act deals with accounts and audit and states that every registered society shall keep proper books of accounts, prepare receipt and expenditure account and balance sheet at the end of the every financial year and shall cause their proper audit.
134.Section 44 deals with removal of a defunct registered society, where the Registrar of societies has reasonable cause to believe that a society is not in operation or not carrying on business. Section 44(3)(b) reads as follows:
44.Removal of defunct registered societies.-
………..
(3)If, in any vase where a registered society-
……..
(b)has not, for three consecutive financial years, filed with the Registrar all or any of the documents referred to in clause (b) of sub-section (3) of Section 16, The Registrar may publish in the Tamil Nadu Government Gazette, and send to the registered society by registered post, a like notice as is provided in sub- section (2) of this section.
135.The 1979 society has admittedly, defalcated in its responsibilities in this regard and is defunct, having not filed returns or effected statutory compliances for several years as on date. The question of such a society having convened a meeting and passing a special resolution is thus out of the question. 75 That apart, the resolution passed by the 2008 in the present case is styled as an ordinary resolution and thus, does not satisfy the mandate of Section 30. There is also no serious defence to the allegation that even the 2008 society has not been regular in effecting statutory compliances.
136.Thus, suffice it to state that both societies have been operating in a very lackadaisical fashion. The documents produced reveal that the names of the two societies have been used interchangeably over the years. While the 1979 society has no operations as on date, R3 society manages several educational institutions and the fate of over 6000 students rest upon the proper functioning of the said institutions. It is thus incumbent that R3 adheres scrupulously to the letter of the law in all respects.
137.Going a step further, the documents filed under cover of memo dated 25.06.2021 make it more than apparent to me that so-called resolution dated 24.06.2006 is no resolution in the eyes of law. As is evident from the letter of R2 dated 22.06.2021, the resolution passed by R3 has not been registered in terms of Section 14 of the Act and thus, has no validity in the eyes of law.
138.That apart, the legitimacy of the resolution and intention of the same also are matters that concern me deeply. The resolution seeks to substitute the following clause;
‘There will be 10 (Ten) members in the committee of the governing body who shall consist of the trustees of the time being of Sri Muthukumaraswamy 76 Devasthanam and any 5 members belong to Beri Chetty Community being followers of Sri AbhinavaDharmasivachariar madam, who shall be co-opted for such purpose periodically.
with the following clause;
‘There will be 11 members in the committee of the governing body who shall belong to Beri Chetty Community being followers of Sri AbhinavaDharmasivachariar madam, who shall be interested in the welfare of the society who shall be co-opted for such purpose periodically.’
139.The intent is clear, that is, to divorce the temple management from the management of educational societies. This is contra to the original intention as reflected in the unamended clause, that specifically provides for a nexus or communality between those in the management of the temple and those in management of the society.
140.However, this is not to say, and the remedy is not to invalidate the substratum upon which the educational institutions function. Neither is this my intention. Admittedly, the society constitutes the educational agency managing the educational institutions. I agree entirely that the interests of the institutions must not be compromised on account of the in-fighting, either between community members or between the community and HR&CE Department. To this end, I find no necessity to refer to or discuss the judgement in 2003(8)SCC 413 cited by R3 on the aspect of whether a Society registered under the provisions of the Societies Registration Act could be construed as a juristic person.
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141.The educational institutions have been set up from out of funds collected from members of the Vysya community, and in one case, the Sri MuthukumaraswamyDevasthana Hindu Higher Secondary School, situated at old no.17, new no.18, Ponnappa street, Chennai 600 003 has been set up on land that was endowed to the temple for that express purpose. This finds reference in the by-laws of the 1979 Society, clause 7.
142.There appears to have been periodic flow of funds between the temple and the society for maintenance of the educational institutions and meeting expenses such as salaries for the faculty. Statement of Hundial collections and audit reports for various faslis have been produced by the petitioner to evidence this point.
143.That apart, the petitioner points out that the land upon which one of the educational institution stands, the college specifically, was allotted by the Tamil Nadu Housing Board and the application for such allotment was by the 1979 society. This is denied by R3 and both sides have advanced some submissions in this regard. Allegations are levelled as against R3 in regard to the diversion of temple funds to administer the school.
144.I am neither inclined not equipped with the necessary details to render a finding in regard to financial independence or otherwise of the educational institutions qua the temple. One thing is clear. Both the temple and the educational institutions have as their raison d’etre (reason/basis for 78 existence) the community, though without question, this basis is subservient and inferior to Divine will to which the temple will trace its existence. The temple and educational institutions have been grown and maintained by the munificence of members of the community and I am thus categoric that this position must be maintained.
145.As far as the management of the temple is concerned, the modified scheme does recognise and protect the nature of the temple as a community temple. Though the modus operandi for constitution of the Board of Trustees has been changed from election to selection, the pool of members from amongst whom the selection shall take place shall comprise eligible members of the community. Likewise, the society must comply with the by-laws and align itself with the conditions and requirements set out therein.
146.The 2008 society appears to be a counter-blast to the intervention of the HR and CE Department in temple affairs. This however does not legitimise its formation and continued existence when the 1979 society was formed for the same avowed objects and purposes. It is thus my considered view that there was no necessity for the formation of another society when the 1979 society had been formed precisely for the same objects, that is the dissemination of education under the auspices of the temple and the benign grace of the deity. 79
147.The 1979 society shall stand revived and brought to fruition forthwith,as far as possible, in line with the by-laws thereof. The 2008 society may well be merged with the 1979 society if the parties believe it beneficial to the interests of the temple. Else the 2008 society shall stand extinguished and its assets shall stand transferred to the 1979 society.
148.At this juncture, I may point out that this Court finds the manner in which part of the prayer in this writ petition is couched, misconceived and quite unacceptable. The first limb which seeks a quash of order dated 25.03.2010 is accepted and the impugned order is quashed. The direction sought by the petitioner to R3 to handover the management, administration and properties of the educational institutions to the temple administration cannot be granted. The aforesaid assets, including all other assets of the temple, movable and immovable, shall vest in the deity, SreeMuthukumaraswamy of Kandakottam.
149.The Hon’ble Supreme Court in the case of A.A.Gopalakrishnanv.CochinDevaswom Board has settled the position that this Court is parens patriae in respect of assets vested in idols which have the status of minor in law. The Bench states at paragraph 10 as follows:
10. The properties of deities, temples and Devaswom Boards, require to be protected and safeguarded by their trustees/archakas/shebaits/employees. Instances are many where persons entrusted with the duty of managing and safeguarding the properties of temples, deities and Devaswom Boards have usurped and misappropriated such properties by setting up false claims of ownership or 80 tenancy, or adverse possession. This is possible only with the passive or active collusion of the authorities concerned.
Such acts of "fences eating the crops" should be dealt with sternly. The Government, members or trustees of boards/trusts, and devotees should be vigilant to prevent any such usurpation or encroachment. It is also the duty of courts to protect and safeguard the properties of religious and charitable institutions from wrongful claims or misappropriation.
150.As at present, the temple is being managed by the Department. I have at paragraphsdirected that the process of constitution of the Board of Trustees of the temple be commenced forthwith and completed prior to 31.03.2022. The process of revival of the 1979 society has also been directed at paragraphs as above.
To reiterate:
1)Since the 1979 society is stated to be inactive as of now, the same will be revived forthwith, under the guidance of the Interim Committee appointed under this order.
2)The constitution of the School Boards from academic year June 2022 onwards shall be brought in line with the by-laws of the 1979 society.
3)It is made clear that there shall be no interruption or impediment in the management of the schools that shall continue to be managed by those presently doing so, though under the Chairmanship of the Hon’ble Judge, till the completion of the present academic year, that is till May 2022. In the meanwhile, the activities of the 1979 society shall be streamlined. The interim 81 committee is at liberty to seek directions or extensions of timelines if, and when required.
4)Where there are claims of infusion of funds by individuals into the 2008 society, the Hon’ble Judge is requested to enquire into same and indicate her decision in regard to such claim to this Court.
5)Statutory compliances to be effected by the temple and society where necessary and pending.
151.The temple and the schools will together, for the above purposes, pay a monthly honorarium of a sum of Rs.2,00,000/- (Rupees two lakhs only) to the Hon’ble Judge. All expenses shall be reimbursed on actuals. The honorarium as aforesaid, is inclusive of the honorarium stipulated at paragraph112 supra.
152.The writ petition is allowed and the impugned order is set aside. A.No.9748 of 2018 is ordered as above. List on 10.02.2022 to await report of the Interim Committee.
22.03.2021& 21.10.2021 sl Index:Yes/No Speaking order/Non-speaking order To 1 The Commissioner Hindu Religious&CharitableEndowments 82 UthamarGandhiAdigalSalai, Nungambakkam, Chennai 34.
2 The Joint Commissioner Hindu Religious&CharitableEndowments UthamarGandhiAdigalSalai, Nungambakkam, Chennai 34.
3 The Executive Officer, ArulmiguSriMuthukumaraswami Temple alias KandaswamiTemple, 44 RasappaChettyStreet, Park Town,Chennai-3
4. Principal Secretary Tourism Culture And Religious Endowment Department Secretariat Chennai-9.
5. The Inspector General of Registration Department of Registration Santhome High Road Santhome Chennai-28.
6.The Registrar of Societies (District Registrar) North Chennai Department of Registration First Line BeachRoad Chennai-1. 83 DR. ANITA SUMANTH, J.
sl A. Nos.4951, 3918, 4952, 4954, 4955, 4956, 3896, 4957, 4953 of 2017 and OA No.711 of 2017 in C.S. No.117 of 1907 and WP. Nos. 28763, 34672, 29658, 29659 of 2013, 27842, 17599, 18068, 23560, 27681, 15151, 3527, 27522 of 2014 WP.No.30371 of 2015, WP.No.2301 of 2016 WP.No.15026 of 2017 and WMP.Nos.16263 & 16264 of 2017 AndA.No.9748 of 2018 & C.S.No.837 of 2018 & W.P. No.5293 of 2017 84 22.03.2021& 21.10.2021 85