Madras High Court
Sri Arulmighu Sundara Mahalingaswamy ... vs State Of Tamil Nadu Represented By Its ... on 9 December, 1993
Equivalent citations: (1994)1MLJ520
ORDER Bakthavatsalam, J.
1. Though the contempt application was filed and came up for hearing, since the writ petition falls within a short compass, the writ petition is taken up for final hearing.
2. The petitioner challenges a Government Order passed in G.O.Ms. No. 763, dated 3.6.1976, Commercial Taxes and Hindu Religious and Charitable Endowments Department, dated 3.6.1976 by which a Fit Person was appointed for the petitioner institution. In April, 1976, an Executive Officer was appointed under the Hindu Religious and Charitable Endowments Act, 1959 (Tamil Nadu Act 22 of 1959) (hereinafter referred to as the "Act 22 of 1959"). The petitioner challenge the order of appointment of the Executive Officer byway of writ petition, but it was dismissed on the ground that the petitioner can move the Government under the provisions of Act 22 of 1959. The petitioner challenged by way of filing suits in O.S. No. 324 of 1976 on the file of Sub Court, Madurai for declaration that the order appointing Executive Officer void and certain other reliefs and also O.S. No. 267 of 1976 to set aside and declare as nullity the proceedings connected with Section 101 of the H.R. and C.E. Act. By common judgment dated 16.2.1978 it was held that the petitioner institution always had hereditary trustee and there has been usage in the institution to appoint Sishyas as heirs/successors and that the order of appointment under Section 45 of the Act is void and violative of principles of natural justice. However, the suits were dismissed on the ground that they were barred by Sections 108 and 111 of H.R. and C.E. Act. Against the said judgment of the lower court, first appeals were filed in A.S. No. 546 of 1978 and 721 of 1980. By common judgment in the above first appeals, Bellie, J. dismissed the appeals taking the view that suits themselves had become infructuous, because the appointment of order purporting to appoint under Section 45 of the Act, has been superseded directing the Executive Officer to act as Fit person under the Act passed in the year 1976. Learned Judge dismissed the suits as having become infructuous. At this stage, the petitioner has come up before this Court challenging the impugned order passed under Section 11 of Act 24 of 1976 by which the fit person was appointed.
3. The petitioner alleges in the affidavit that the Tamil Nadu Act 24 of 1976 itself is not applicable to the petitioner institution since according to the provisions of the Act, there must be a non-hereditary trustee appointed earlier to the date, the Act came into force and that the institution concerned should not have had hereditary trustee. It is also contended that the Executive Officer was a non-hereditary trustee appointed either under Section 47 or 49 of the Act and that he was only appointed under Section 45 of the Tamil Nadu Act 24 of 1976. It is also pointed out that the institution has always had hereditary trustee and such a finding has been rendered by Sub Court, Madurai when the suits were filed. It is also pointed out that the order directing the Executive Officer to function as a Fit Person is also vitiated because the order appointing fit person itself is void. It is also pointed out that the Government cannot assume jurisdictional fact and that if this was a religious institution or samadhi or denominational institution and proceeds to appoint Executive Officer.
4. A counter-affidavit has been filed by the respondents in which it is stated that the petitioner has not obtained a declaration either Section 63(b) of the Act or under the earlier enactments. It is also claimed that the alleged hereditary trustee Kuzhandainathaswamy received an order on 9.6.1976 and that he has not chosen to challenge the above order till this date. It is also claimed that the present writ petition has to be dismissed on the ground of laches. It is also pointed out in the counter-affidavit that when the Government order was passed, the said Kuzhandainathaswamy was alive and that he has not challenged that order. Though the counter-affidavit refers to certain facts about O.S. Nos. 267 and 324 of 1976 on the file of Sub Court, Madurai, I do not think it necessary to detail out the same for the purpose of deciding this case. It is further claimed in the counter-affidavit that on the date of coming into force of Act 24 of 1976, an Executive Officer was appointed as Fit Person and he is functioning from 1.6.1976, it is also stated that the decision of the Board under Act 2 of 1927 was final for the purpose of the Act 22 of 1959. It is also pointed out that in the earlier suits, i.e. in O.S. Nos. 6 of 1868 and 149 of 1889, the department was not a party. Obviously, there was no department at all. It is also pointed out in the counter-affidavit that the Executive Officer filed M.P. No. 3 of 1976 under Section 101 of the Act for the issue of certificate, that the said Kuzhandainalhaswamy filed O.S. No. 267 of 1976 against the said order passed in M.P. No. 3 of 1976 and that the plaintiffs were aware of this order and their claims were resisted on the basis of the said order also. It is also pointed out that the suit filed in O.S. No. 267 of 1976 filed for declaration was dismissed. It is also claimed in the counter-affidavit that inasmuch as the petitioner is not the hereditary trustee, he is not entitled to any notice which has been done earlier. It is also pointed out that the Executive Officer was appointed to the temple on 24.4.1976 and then he was appointed as the Fit Person of the said institution, that G.O.Ms. No. 763, Commercial Taxes and Religious Endowments, dated 3.6.1976 was served on the petitioner on 9.6.1976 and as such the provisions of-the Tamil Nadu Act 24 of 1976 have been given effect to.
5. A counter-affidavit has been filed by the third respondent. It is pointed out that the third respondent is holding office by virtue of G.O.Ms. No. 763, dated 3.6.1976 of the first respondent issued in exercise of power conferred on the Government by Section 11(2)(b) of the Act 24 of 1976. It is also pointed out that the alleged hereditary trustee Kuzhandainathaswamy received the order on 9.6.1976, that he did not challenge the order and that when he himself did not challenge the order, his heirs cannot challenge the order. It is also pointed out that merely because a temple is declared an excepted one, it docs not mean to hold that the petitioner is hereditary trustee. It is also pointed out that the trial court in O.S. No. 267 of 1976 and in O.S. No. 324 of 1976, has held that the office cannot be held as hereditary. It is also pointed out that there is no judgment declaring the office as hereditary and that the only judgment in which there is a finding does not bind the Government because Government is not a party. It is also pointed out that Executive Officer was appointed under Section 11 of the Act 24 of 1976 and that even if the appointment as a Fit Person cannot be challenged on this ground, because the Government can appoint any person as Fit Person. It is also claimed in the counter-affidavit that in view of dismissal of W.P. No. 1865 of 1976 and dismissal of O.S. No. 324 of 1976, the petitioner cannot collaterally attack this validity of the order passed in the year 1976. The issue with regard to laches also raised in the counter-affidavit. It is also staled that the impugned order was passed on 3.6.1976, that it has been served on the incumbent on 9.6.1976, that it was relied on as a ground in M.P. No. 3 of 1976 passed on 28.6.1976 for grant of certificate and as such this order cannot be quashed unless and until the petitioner gets an order that he is a hereditary trustee. It is also claimed that the petitioner's application in O.A. No. 63 of 1976 for declaration that the office is hereditary was allowed to be dismissed for default.
6. Mr. B. Kumar, the learned Counsel for the petitioner vehemently contends that when the petitioner is the hereditary trustee of the temple, the impugned order passed in the year 1976 is liable to be quashed as the Act will not be applicable where there is no hereditary trustee and that there are clear findings by the civil court that the petitioner is the hereditary trustee and as such the impugned order is liable to be set aside.
7. Per contra, Mr. R. Alagar, learned Senior Counsel appearing for the third respondent Fit Person, points out Section 11 of Act 24 of 1976 and contends that the Act itself which is a temporary are has come to an end. Learned Senior Counsel also contends as the said Act itself is a temporary one and it was extended by Act 30 of 1986, and it had expired. Learned Senior Counsel further argues that an order passed under that Act cannot be challenged at this, point of time, i.e. nearly after 20 years and as such this writ petition has got to be dismissed on the ground of laches.
8. I have considered the arguments of Mr. B. Kumar, learned Counsel appearing for the petitioner, Mr. R. Alagar, the learned Senior Counsel appearing for the third respondent Fit Person and also of the learned Additional Government Pleader for the Department, and have gone through the materials placed before this Court. I am of the view that this writ petition has got to be dismised on the ground of laches. There is no doubt that Kulandainathaswamy had claimed to be the hereditary trustee when the impugned order came to be passed in the year 1976 and that he died in the year 1981. He never thought of challenging that order and such that order has become final. Act XXIV of 1976 was passed during emergency and under Sub-section (2) of Section 11 of the Act, Executive Officer was appointed for several institutions in Madurai and Ramanathapuram districts by G.O.Ms. No. 763, Commercial Taxes and Religious Endowments Department, dated 3.6.1976. One of such institution is the petitioner institution. This Act XXIV of 1976 expired due to efflux of time in the year 1981. Subsequently, an Act was passed in Tamil Nadu Act (XLVI of 1991) and under Section 61 of the Act XLVI of 1991, non-hereditary trustee ceased to hold office. This Act came into effect during November, 1991. Under Section 63 of the Act XLVI of 1991, if there is a vacancy occurred under Sub-section (1) of Section 63 within a period of one-year from the date of commencement, shall be filled up by notification specify in this behalf. Even if it is taken that the third respondent is a Fit, Person or an Executive Officer, I am of the view that the effect is to be given by the respondents by Section 61 of Act XLVI of 1991 by appointing non-hereditary trustees as the case of the respondents seems to be that the petitioner is not a non-hereditary trustee. In this case, it is seen that the Executive Officer Fit Person is holding the office till now. I do not think it is possible. So in my view, even though this writ petition has got to be dismissed. On the ground of laches and also on the ground that the petitioner has not proved himself as hereditary trustee, a direction is to issue to the respondents to take action according to Section 61 of Act 46 of 1991 and try to fill up the vacancies of the trusteeship. In my view, the third respondent herein cannot continue for ever, for managing the affairs of the institution. This writ petition is ordered accordingly. No costs. In view of the order by the writ petition as stated above, Contempt Application No. 392 of 1993 is closed.
9. As I have stated above, suitable action should be initiated by the respondents, until Tamil Nadu Act 46 of 19911 do hope that the petitioner also will given an opportunity to state its objections.