Madras High Court
R.Shampath vs The Govt. Of Tamil Nadu on 8 August, 2022
Author: C.Saravanan
Bench: C.Saravanan
W.P.No.18551 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.08.2022
CORAM
THE HONOURABLE MR.JUSTICE C.SARAVANAN
W.P.No.18551 of 2022
and
W.M.P.Nos.17895 & 17896 of 2022
1.R.Shampath
2.K.Sridhar ... Petitioners
Vs.
1.The Govt. of Tamil Nadu,
By its Secretary, H.R. & C.E.,
Fort St.George, Chennai.
2.Hindu Religious and Charitable
Endowments Department,
By its Commissioner,
# 119, Uthamar Gandhi Salai,
Thousand Lights West,
Nungambakkam,
Chennai, Tamil Nadu 600 034. ... Respondents
Writ Petition filed under Article 226 of the Constitution of India for
issuance of a Writ of Certiorarified Mandamus, to call for the records of
the impugned order issued by the first respondent in G.O.No.75 dated
05.08.2020 and to quash that portion of said G.O./ appointment order in
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https://www.mhc.tn.gov.in/judis
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W.P.No.18551 of 2022
so far it relates to the tenure of appointment of petitioners Dharmakarthas,
which is in violation of Rule 14 of the Scheme Decree and consequently
to direct the first respondent to revise tenure of appointment of petitioners
Dharmakarthas for a period of 5 years in terms of the Scheme Decree.
For Petitioners : Mr.J.Srinivasa Mohan
For Respondents : Mr.N.R.R.Arun Natarajan
Special Government Pleader
ORDER
The petitioners have challenged the impugned G.O.No.75, Tourism, Culture and Religious Endowments (T3-1) Department, dated 05.08.2020 of the first respondent.
2. By the impugned G.O.No.75, Tourism, Culture and Religious Endowments (T3-1) Department, dated 05.08.2020, the tenure of the petitioners who were appointed as Religious Dharmakartha and Secular Dharmakartha of Sri Adhikesava Perumal and Bashyakara Swamy Devasthanam, Sriperumbudur has been restricted to 2 years in terms of Section 47(3) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959.
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3. It is the case of the petitioners that the subject temple Sri Adhikesava Perumal and Bashyakara Swamy Devasthanam (temple) is governed by a Scheme Decree dated 03.01.1923 passed by the Subordinate Court, Chengalpattu in O.S.No.30 of 1921.
4. It is submitted that as per the above Scheme Decree, the position to be held by the non-hereditary Religious Dharmakartha and Secular Dharmakartha is 5 years. However, by the impugned G.O., the first respondent has restricted the tenure to 2 years under Section 47 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959.
5. It is therefore submitted that the impugned G.O.No.75, Tourism, Culture and Religious Endowments (T3-1) Department, dated 05.08.2020, is liable to be quashed.
6. It is submitted by the petitioners that the subject temple is Section 46(iii) temple and even if Section 47 was to be applied, the maximum of five members are to be appointed. It is further submitted that the Board of Trustees should consist of a minimum of 3 persons and _______________ https://www.mhc.tn.gov.in/judis Page No. 3 of 16 W.P.No.18551 of 2022 maximum of 5 persons.
7. It is submitted that it is a peculiar situation, where, the respondents have partly implemented the Scheme Decree in O.S.No.30 of 1921 dated 03.01.1923 insofar as the appointment of Religious Dharmakartha and Secular Dharmakartha and partly applied Section 47(3) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 insofar as the fixation of tenure for them.
8. The Special Government Pleader for the respondents, on the other hand, submits that there is no justification in the plea of the petitioners to continue beyond the period of 2 years from the date of appointment.
9. It is submitted that the provisions of Section 50 of the Act as also Section 118(2)(b) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 make it clear that if any provision contained in Scheme is repugnant to the provisions of the Act, the Scheme to the extent of repugnancy, is void. It is therefore submitted that the respondents have _______________ https://www.mhc.tn.gov.in/judis Page No. 4 of 16 W.P.No.18551 of 2022 correctly confined the tenure to 2 years and therefore, this Writ Petition deserves to be dismissed.
10. I have considered the arguments advanced by the learned counsel for the petitioners and the learned Special Government Pleader for the respondents.
11. In the the impugned G.O.No.75, Tourism, Culture and Religious Endowments (T3-1) Department, dated 05.08.2020, the first respondent has applied Section 47(3) of the Act.
12. The Scheme Decree was passed under Section 92 of the Civil Procedure Code, 1908. Section 118(2)(b)(i) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 makes it clear that if any provision contained in any scheme settled or deemed to have been settled under the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1926 including a scheme settled under Section 92 of the Code of Civil Procedure, 1908 in force immediately before the 30th September 1951, i.e. before the enactment of the Tamil Nadu Hindu Religious and Charitable _______________ https://www.mhc.tn.gov.in/judis Page No. 5 of 16 W.P.No.18551 of 2022 Endowments Act, 1951, is repugnant to any provision contained in the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 or the Rules made thereunder, the latter provision shall prevail and the former provision shall be void, to the extent of such repugnancy.
13. The procedure for appointing trustees by the respondents is contemplated in the first proviso to Section 47(1)(a) of the Act. Section 47 of the Act reads as under:-
47. Trustees and their number and term of offices.— (1)(a) Where a religious institution included in the list published under section 46 or in respect of which the Assistant Commissioner has no power to appoint trustees, has no hereditary trustee,— i. in cases falling under clause (i) of section 46, the Joint Commissioner / Deputy Commissioner;
ii. in cases falling under clause (ii) of section 46, the Commissioner; and iii. in cases falling under clause (iii) of section 46, the Government, shall constitute a Board of Trustees.
Provided that the Board of Trustees constituted under items (i) and (ii) of the clause shall, subject to the provisions of clause (c) consist of three persons appointed by the Joint Commissioner / Deputy _______________ https://www.mhc.tn.gov.in/judis Page No. 6 of 16 W.P.No.18551 of 2022 Commissioner or the Commissioner, as the case may be, of whom, one shall be a member of the Scheduled Castes or Scheduled Tribes:
Provided further that in addition to the persons appointed by the Joint Commissioner / Deputy Commissioner or the Commissioner under items (i) or (ii) of this clause, as the case may be, the Government may nominate two persons who are qualified for appointments as trustees under this Act, as members of the said Board of Trustees, having regard to the following matters, namely:—
(a) the interest of the public generally;
(b)the income and the properties of the religious institutions;
(c) the number of worshippers and importance of the religious institutions as a pilgrim center; and
(d)such other matters as may be prescribed.
(b) in respect of all the incorporated and unincorporated Devaswoms in the transferred territory, the 1[Government] shall constitute a single Board of Trustees ;
(c) every Board of Trustees constituted under clause (a) or clause (b) shall consist of not less than three and not more than five persons, of whom one shall be a member of the Scheduled Castes or Scheduled Tribes: and another one shall be a woman.
Provided that the Government, the Commissioner, the Joint Commissioner or the Deputy Commissioner, as the case may be, may, pending the constitution of such Board of Trustees _______________ https://www.mhc.tn.gov.in/judis Page No. 7 of 16 W.P.No.18551 of 2022 under this sub-section, appoint a fit person to perform the functions of the Board of Trustees.
(2) Where in the case of any institution include in the list published under section 46 having a hereditary trustee or trustees, the Government, the Commissioner or the Joint/Deputy Commissioner after notice to such trustee or trustees and after such enquiry as the Government, the Commissioner or the Joint/Deputy Commissioner, as the case may be, deems adequate, considers for reasons to be recorded, that the affairs of the institution are not and or not likely to be properly managed by the hereditary trustee or trustees, [the Government, the Commissioner or the Joint / Deputy Commissioner may, by order, appoint a non-hereditary trustee or such number of non-hereditary trustees, as may be considered necessary by [the Government, the Commissioner, or the Joint/Deputy Commissioner], as the case may be.
(3) Every trustee appointed under sub-section (1) and subject to the result of an application, if any, filed under sub-section (4), every non-hereditary trustee appointed under sub-section (2) shall hold office for a term of two year, unless in the meanwhile the trustee is removed or dismissed or his resignation is accepted by the Government, the Commissioner or the Joint / Deputy Commissioner, as the case may be, or he otherwise ceases to be a trustee.
Provided that every trustee, who has completed a term of office of one year on the 16th day of July 2006 shall ceases to hold office forthwith and every trustee who completes a term of office of one year after such date shall cease to hold office on such completion.
_______________ https://www.mhc.tn.gov.in/judis Page No. 8 of 16 W.P.No.18551 of 2022 Provided further that every trustee who has not completed a term of office of one year on the date of commencement of the Tamil Nadu Hindu Religious and Charitable Endowments (Amendment) Act, 2010 (Tamil Nadu Act 12 of 2010) shall continue to be the trustee for the period of two years from the date of his appointment.
(4) Where the Government, the Commissioner or the Joint / Deputy Commissioner, by order, appoints a non- hereditary trustee or trustees, the hereditary trustee or trustees may, within thirty days of the receipt of the order, file an application to the Court to set aside or modify such an order:
Provided that the Court shall have no power to stay the order of the Government, the Commissioner or the Joint / Deputy Commissioner, as the case may be, pending the disposal of the application.
14. As per the second proviso to Section 47(1)(a) of the Act, in addition to the persons appointed by the Joint Commissioner/Deputy Commissioner or the Commissioner under items (i) or (ii), the Government may nominate two persons who are qualified for appointments as trustees, as members of the said Board of Trustees, having regard to the following matters, namely:-
i. the interest of the public generally; ii. the income and the properties of the religious institutions;
_______________ https://www.mhc.tn.gov.in/judis Page No. 9 of 16 W.P.No.18551 of 2022 iii. the number of worshippers and importance of the religious institutions as a pilgrim center; and iv. such other matters as may be prescribed.
15. Under the situation covered under Section 47(1)(a)(i) & (ii) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, the Joint Commissioner / Deputy Commissioner or the Commissioner shall appoint three person to the Board of Trustees subject to clause (c) to Section 47(1)(a) of the Act. Clause (c) to Section 47(1)(a) of the Act of the reads as under:-
(c) every Board of Trustees constituted under clause
(a) or clause (b)shall consist of not less than three and not more than five persons, of whom one shall be a member of the Scheduled Castes or Scheduled Tribes: and another one shall be a woman.
16. Thus, other than three members, the Government can also nominate two persons who are qualified for appointments as trustees having regard to the circumstances specified in Sub-Clause (a) to (d) of the second proviso to Section 47(1)(a) of the Act.
17. A reading of Section 47(1)(a)(iii) of the Act makes it clear that _______________ https://www.mhc.tn.gov.in/judis Page No. 10 of 16 W.P.No.18551 of 2022 the Government, in cases falling under Section 46(iii) of the Act, shall constitute a Board of Trustees.
18. However, there is a vacuum as far as the number of persons who could be appointed by the Government as the members of the Board of Trustees for the temple falling under Section 46(iii) of the Act who are to be appointed by the Government. Clause 3 to Section 47 of the Act merely specifies the term of office as two years.
19. By implication, even in the case of temple falling under Section 46(iii) of Act i.e. whose income is not less than Rs.10,00,000/- per annum, at least five persons should be appointed, out of which, three persons who are to be appointed similar to the appointments to be made by Joint Commissioner / Deputy Commissioner or the Commissioner and two other members are to be appointed by the Government having regard to the circumstances specified in second proviso to Section 47(1) of the Act.
20. Section 47 (3) of the Act also makes it clear that every non- hereditary trustee appointed under Section 47(1) of the Act and subject to _______________ https://www.mhc.tn.gov.in/judis Page No. 11 of 16 W.P.No.18551 of 2022 the result of an application, if any, filed under Section 47(4) of the Act and every non-hereditary trustee appointed under Section 47(2) of the Act, shall hold office for a term of two years, unless the Trustee is removed or dismissed or his resignation is accepted by the Government, the Commissioner or the Joint / Deputy Commissioner, as the case may be, or he otherwise ceases to be a Trustee.
21. The procedure adopted by the respondents is hybrid as the respondents have partly complied with the Act and partly complied with the Scheme Decree.
22. Section 50 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 also makes it clear that the power to appoint trustees under Section 47 or Section 49 or Section 49-A of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, shall be exercisable notwithstanding that the Scheme, if any, settled or deemed to have been settled for the institution contains provision to the contrary.
23. Section 118(2)(b)(i) and Section 50 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, are reproduced below:-
_______________ https://www.mhc.tn.gov.in/judis Page No. 12 of 16 W.P.No.18551 of 2022 Section 118(2)(b)(i) of the Tamil Section 50 of the Tamil Nadu Nadu Hindu Religious and Hindu Religious and Charitable Endowments Act, Charitable Endowments Act, 1959 1959
118. Repeals and savings.— 50. Power under sections 47, 49 (1) .............. and 49-A to be exercisable (2) Notwithstanding the repeal of notwithstanding provisions in the said Act by sub-section (1)— scheme.-
(a) .................. The power to appoint trustees
(b) (i) if any provision contained in under section 47 or section 49 or any scheme settled or deemed to section 49-A shall be exercisable have been settled under the notwithstanding that the scheme, Tamil Nadu Hindu Religious and if any, settled, or deemed under Charitable Endowments Act, this Act to have been settled for 1926 (Tamil Nadu Act II of the institution contains provision 1927), including a scheme to the contrary.
settled under section 92 of the Code of Civil Procedure, 1908 (Central Act V of 1908), and in force immediately before the 30th September 1951 is repugnant to any provision contained in this Act or the rules made thereunder, the latter provision shall prevail, and the former provision shall, to the extent of the repugnancy, be void;
24. To the extent of appointment to the office of Non-Hereditary Trustee as Religious Dharmakartha and Secular Dharmakartha, appears to _______________ https://www.mhc.tn.gov.in/judis Page No. 13 of 16 W.P.No.18551 of 2022 be not sanctioned by the Act. All the same, Non-Hereditary Trustee are to be appointed where these are not Hereditary Trustee as per the Act.
25. The request of the petitioners for continuation of Board of Trustees beyond the period of two years also appears to be not in inconsonance with the provisions of Section 47 read with Section 50 and Section 118(2)(b) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959.
26. Under these circumstances, I am inclined to dispose this Writ Petition by directing the respondents to consider the representation to be given by the petitioners afresh in the light of the above observations and pass appropriate orders within a period of six weeks from the date of receipt of a copy of this order in the background of Scheme Decree and the objective of the Scheme Decree and the provisions of Section 47 read with Section 50 and Section 118(2)(b) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959. Pending such exercise, the position held by the petitioners shall not be disturbed. _______________ https://www.mhc.tn.gov.in/judis Page No. 14 of 16 W.P.No.18551 of 2022
27. The petitioners are given liberty to give a fresh representation to the respondents, within a period of two weeks from the date of receipt of a copy of this order.
28. This Writ Petition stands disposed with the above observations. No cost. Consequently, connected Miscellaneous Petitions are closed.
08.08.2022 Internet : Yes / No Index: Yes/ No Speaking / Non-Speaking Order jen To
1.The Secretary, Tamil Nadu Hindu Religious and Charitable Endowment Department, Fort St.George, Chennai.
2.The Commissioner, Hindu Religious and Charitable Endowments Department, No.119, Uthamar Gandhi Salai, Thousand Lights West, Nungambakkam, Chennai, Tamil Nadu 600 034.
C.SARAVANAN, J.
jen _______________ https://www.mhc.tn.gov.in/judis Page No. 15 of 16 W.P.No.18551 of 2022 W.P.No.18551 of 2022 and W.M.P.Nos.17895 & 17896 of 2022 08.08.2022 _______________ https://www.mhc.tn.gov.in/judis Page No. 16 of 16