Madras High Court
M.Gandhi vs The Commissioner on 14 March, 2022
Author: C.Saravanan
Bench: C.Saravanan
W.P.(MD) No.7905 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved On 21.02.2022
Pronounced On 14.03.2022
CORAM
THE HON'BLE MR.JUSTICE C.SARAVANAN
W.P.(MD) No.7905 of 2017
and
W.M.P. (MD) No.6129 of 2017
(Through Video Conferencing)
M.Gandhi ... Petitioner
Vs.
1.The Commissioner,
Hindu Religious & Charitable
Endowment Department,
Chennai – 600 034.
2.The Joint Commissioner,
Hindu Religious & Charitable
Endowment Department,
Madurai – 625 001.
3.S.Ashok Kumar ... Respondents
Writ Petition filed for issuance of a Writ of Certiorarified
Mandamus, to call for the records relating to proceedings of the
______________
https://www.mhc.tn.gov.in/judis
Page No 1 of 26
W.P.(MD) No.7905 of 2017
impugned order in R.P.No.108/2016 D2 dated 30.09.2016 on the file of
the first respondent in respect of the Shri Rajarajeswari
Thandumariamman Temple, Nethaji Road, Madurai and quash the same
and further direct the first and second respondents to constitute the Board
of Trustees for the administration of the said temple in accordance with
the scheme framed in O.A.No.07/1952 by the Deputy Commissioner,
H.R. & C.E. Department, Thanjavur.
For Petitioner : Mr.G.Prabhu Rajadurai
For R1 & R2 : Mr.P.Subbaraj,
Special Government Pleader
For R3 : Mr.C.Guhaseelarupan
ORDER
The petitioner has challenged the impugned order dated 30.09.2016 passed by the first respondent Commissioner under Section 21 of the H.R. & C.E. Act in R.P.No.108 of 2016-D2.
2. In the said proceeding, the petitioner had challenged the order passed by the second respondent Joint Commissioner on 18.07.2015. By this order, the second respondent rejected the request of the petitioner to be recognised as a Hereditary Trustee of Sri Raja Rajeswari Thandu Mariamman Temple, Dindigul Road, Madurai. The case of the petitioner ______________ https://www.mhc.tn.gov.in/judis Page No 2 of 26 W.P.(MD) No.7905 of 2017 is that the petitioner and the third respondent's grandfather late S.Subramaniya Gounder died leaving behind him his four sons namely, S.Mahalinga Gounder, S.Sarangapani Gounder, S.Sandhanavelu Gounder and Jeyavelu Gounder. It is further submitted that after the death of said S.Subramaniya Gounder, his eldest son, S.Mahalinga Gounder, the father of the petitioner was administering the temple as a Hereditary Trustee.
3. After the petitioner’s father, S.Mahalinga Gounder fell ill, the petitioner’s uncle, namely, S.Sarangapani Gounder the father of the third respondent was appointed as a Hereditary Trustee since the sons of late Mahalinga Gounder including the petitioner were minor at that time. It is submitted that late Sarangapani Gounder, the paternal uncle of the petitioner, was acting as a Hereditary Trustee who also died on 16.02.1985. The case of the petitioner is that the temple was under
control of the family and therefore his family members took over the administration of the temple and that after the death of late.Sarangapani Gounder, his wife started administering the temple jointly till her death in the year 2010. It is submitted that the petitioner is entitled to the office of the Hereditary Trustee as per Section 54(1) of the H.R. & C.E. Act and therefore the rejection of the request of the petitioner by the second ______________ https://www.mhc.tn.gov.in/judis Page No 3 of 26 W.P.(MD) No.7905 of 2017 respondent vide order dated 18.07.2015 was bad in law and therefore the rejection of petitioner's further appeal vide impugned order by the first respondent, dated 30.09.2016 was liable to be interfered.
4. The learned counsel for the petitioner further submits that the scheme framed by the erstwhile Board on 12.07.1933 was modified by the Deputy Commissioner on 10.04.1953 in O.A.No.7 of 1952. It is submitted that it is still in force and the hereditary trustee and non-
hereditary trustee can function only in terms of the aforesaid scheme. It is submitted that though the petitioner's father was the eldest member of the family after the petitioner's and the third respondent's grandfather, namely, Subramaniya Gounder died on 10.02.1970, the petitioner's father, namely, Mahalinga Gounder was unable to take up the office of the hereditary trustee on account of his health and therefore, his younger brother namely, Sarangapani Gounder took over the office of the hereditary trustee, in terms of the scheme framed in the year 1933 as modified by the scheme dated 10.04.1953 by the Deputy Commissioner.
5. It is submitted that after the petitioner's paternal uncle, namely, Sarangapani Gounder (father of the third respondent) died on 16.02.1985, ______________ https://www.mhc.tn.gov.in/judis Page No 4 of 26 W.P.(MD) No.7905 of 2017 the affairs of the temple were taken care of by the members of the family and that the third respondent surreptitiously procured an order dated 06.10.1999 behind his back without notice to declare the third respondent as the Hereditary Trustee of the Temple.
6. The learned counsel for the petitioner further submits that though as per the Scheme framed in 1933, the management of the temple was vested with the members of Vanniya Gounder community residing in 7 streets and 7 members were to appoint as the members of the Hereditary Trustee, who had to be called as Periathanakarars and the Chief among them would have been called as Nattanmaikar. It is submitted that the complaint of the petitioner before the second respondent was that there was a large scale mismanagement by the third respondent and that the petitioner was unaware of the fact that the third respondent had been recognized as the Hereditary Trustee on 06.10.1999. It is submitted that the petitioner's application under Section 54 of the Act was not considered by the second respondent.
7. It is submitted that the second respondent by an order dated 20.07.2015 merely directed the petitioner to file a suit to establish the ______________ https://www.mhc.tn.gov.in/judis Page No 5 of 26 W.P.(MD) No.7905 of 2017 petitioner's right to the hereditary trustee even though the petitioner is the eldest son of eldest son of late.Subramaniya Gounder.
8. It is further submitted that the revision filed before the first respondent under Section 21 of the Tamil Nadu Hindu Religious and Charitable Endowment Act, 1951 has resulted in non suiting of the petitioner on the ground of limitation. It is submitted that the decisions referred by the first respondent in the impugned order dated 30.09.2016 are irrelevant to the facts of the present case.
9. The learned counsel for the petitioner has placed a strong reliance on the recent decision of the Hon'ble Supreme Court in the case of Ganesan represented by its Power Agent, G.Rukmani Ganesan Vs. Commissioner, HR & CE Board and others, (2019) 7 SCC 108. A specific reference was made to paragraph No.59 from the said judgment, which reads as under:-
59. The ratio which can be culled from the abovenoted judgments, especially judgments of three-Judge Benches, as noted above, is as follows:
59.1. The suits, appeals and applications ______________ https://www.mhc.tn.gov.in/judis Page No 6 of 26 W.P.(MD) No.7905 of 2017 referred to in the Limitation Act, 1963 are suits, appeals and applications which are to be filed in a court.
59.2. The suits, appeals and applications referred to in the Limitation Act are not the suits, appeals and applications which are to be filed before a statutory authority like Commissioner under the 1959 Act.
59.3. Operation of Section 29(2) of the Limitation Act is confined to the suits, appeals and applications referred to in a special or local law to be filed in court and not before statutory authorities like Commissioner under the 1959 Act.
59.4. However, special or local law vide statutory scheme can make applicable any provision of the Limitation Act or exclude applicability of any provision of the Limitation Act which can be decided only after looking into the scheme of particular, special or local law.
10. The learned counsel for the petitioner therefore submits that the limitation in Article 107 would not apply to the facts of the present case as the petitioner was unaware of the adverse possession all along.
11. Opposing the prayer of the petitioner in this writ petition, the learned counsel for the official respondents submits that the writ petition is devoid of merits and the petitioner has an alternate remedy under ______________ https://www.mhc.tn.gov.in/judis Page No 7 of 26 W.P.(MD) No.7905 of 2017 Section 114 of the HR&CE Act and therefore the petitioner should be directed to workout the remedy in terms of the aforesaid provision.
12. The learned Special Government Pleader for the first and second respondents further submits that the petitioner's and the third respondent's grandfather, Subramaniya Gounder officiated the affairs of the temple as the hereditary trustee till 1963 and that after the death of their grandfather, the third respondent's father, Sarangapani Gounder took charge, as the petitioner's father Mahalinga Gounder was unwell. It is submitted that the third respondent's father Sarangapani Gounder died on 16.02.1985 and that after the death of his father, the third respondent's elder brother Velankanni, took over the affairs of the temple as the Hereditary Trustee.
13. It is submitted that the third respondent’s elder brother died and thereafter, the third respondent’s mother, namely, Sundaram Ammal was in control and in 1999, an application was filed under Section 54 (1) of the Act before the second respondent for recognizing the third respondent as the hereditary trustee and from 1999, the third respondent has been officiating in the capacity of the hereditary trustee. ______________ https://www.mhc.tn.gov.in/judis Page No 8 of 26 W.P.(MD) No.7905 of 2017
14. It is therefore submitted that the attempt of the petitioner in the year 2014 long after the third respondent became as the Hereditary Trustee, the expiry of limitation was barred, in terms of Article 107 of the Limitation Act. It is therefore submitted that the decisions of the first respondent were well reasoned and require no interference and therefore, the impugned order passed by the second respondent rejecting the revision filed under Section 21 of the HR & CE Act, is to be upheld. The learned Special Government Pleader therefore prays for dismissal of the writ petition.
15. The learned counsel for the third respondent, who is the paternal cousin of the petitioner and son of late.Sarangapani Gounder who is officiating as the Hereditary Trustee since 1994, submits that the issue has been decided by the Joint Commissioner earlier on 18.07.2015 and that the petitioner filed a revision petition under Section 21 of the Tamil Nadu HR&CE Act, 1959 (Act 22 of 1959) before the Commissioner, HR&CE.Admn Department, Chennai, which has been rightly rejected on merits vide impugned order, dated 30.09.2016 and therefore there is no merits in the writ petition. ______________ https://www.mhc.tn.gov.in/judis Page No 9 of 26 W.P.(MD) No.7905 of 2017
16. It is submitted that the power of review under Article 226 of the constitution of India is confined to the decision making process and not the decision and since the petitioner has not made out a case for interfere as an alternate and effecasious remedy exist. It is therefore submitted that the writ petition is liable to be dismissed.
17. The learned counsel for the petitioner by way of rejoinder submits that these resolutions were not brought on record either before the second respondent or before the first respondent and have been produced before this Court for the first time and therefore, they cannot be relied upon.
18. I have considered the rival submissions made by the learned counsel for the petitioner, learned Special Government Pleader for the first and second respondents and the learned counsel for the third respondent and I have perused the records.
19. The core issue that arises for consideration in this writ petition is whether the application filed by the petitioner before the second ______________ https://www.mhc.tn.gov.in/judis Page No 10 of 26 W.P.(MD) No.7905 of 2017 respondent, which was partially rejected by the second respondent vide order dated 20.07.2015 as affirmed by the first respondent vide impugned order dated 30.09.2016 is sustainable or not?
20. The facts indicate that there was a Scheme Decree in O.A.No. 36 of 1933 framed by the erstwhile Hindu Religious and Charitable Endowment Board of the Act on 12.07.1933. Said temple was under the exclusive control of seven families of Vanniya Gounder called the Periathanakarars who held the Hereditary office. Thereafter, the revised Scheme Decree was passed on 02.03.1953 in O.A.No.7 of 1952. Relevant portion reads as under:
3. The above mentioned temples and their properties shall be administered by the Hereditary Trustees and five Non-Hereditary Trustees to be appointed by the Area Committee within whose jurisdiction the temple is situated, and an Executive Officer appointed under the provisions of this scheme.
4.The Hereditary Trustees and the Non-
Hereditary Trustees so appointed shall within a month from the date of the appointment elect one among themselves as Managing Trustee. In the absence of any unanimity in the matter of choice or selection of the Managing Trustee by the trustees, the area committee may appoint a Managing Trustee.
______________ https://www.mhc.tn.gov.in/judis Page No 11 of 26 W.P.(MD) No.7905 of 2017
5.No new appointment shall be created in the temple or the number and salaries and allowances of the existing establishment shall be altered without the specific sanction of such creation or alteration.
21. The facts on record also indicate that the petitioner and the third respondent's grandfather was appointed as the Hereditary Trustee and had officiated in that capacity in the temple till his death in the year 1963.
22. The facts on record also indicates that the petitioner's and the third respondent's grandfather late Subramaniya Gounder acted as a Hereditary Trustee for the temple and died on 16.02.1970. According to the petitioner, the late Subramaniya Gounder died in the year 1963, whereas, in the counter of the first respondent, the late Subramaniya Gounder died on 16.02.1970. There is no clarity as to when the late Subramaniya Gounder died. After the death of the late Subramaniya Gounder, for the intervening period between either from the year 1963 or from 16.02.1970 and till the appointment of the third respondent as the hereditary trustee on 06.10.1999 also, there are no records to show as to who was the Hereditary Trustee. The official respondents would state that ______________ https://www.mhc.tn.gov.in/judis Page No 12 of 26 W.P.(MD) No.7905 of 2017 the elder brother of the third respondent was appointed as the Hereditary Trustee. However, it is contrary to letter dated 06.10.1999 of the second respondent.
23. It is case of the petitioner that the petitioner officiated for some time, the petitioner's father late Mahalingam officiated and thereafter, the petitioner's uncle late Sarangapani Gounder, i.e. father of the third respondent, acted as Hereditary Trustee till died on 16.02.1985.
24. It is an admitted facts that after the death of late Sarangapani Gounder (paternal uncle of the petitioner and the father of the third respondent), the affairs of the temple was managed by the family and nobody come forward to act as Hereditary Trustee and taking advantage of the vacuum created, the third respondent appears to have approached the second respondent for recognizing him as Hereditary Trustee in the said temple. Thus, the order was passed by the second respondent on 06.10.1999.
25. Though the petitioner’s father Mahalinga Gounder was the eldest male member of the family and was entitled to succeed to the ______________ https://www.mhc.tn.gov.in/judis Page No 13 of 26 W.P.(MD) No.7905 of 2017 office of the Hereditary Trustee in terms of Section 54 of the Act, the office of the Hereditary Trustee was given to the third respondent's father late Sarangapani Gounder. Late. Sarangapani Gounder, the father of the third respondent died on 16.02.1985.
26. Thereafter, the baton was handed over to the male members of the third respondent family, namely, the elder brother of the third respondent, Velankanni and thereafter to the third respondent, in terms of the order dated 06.10.1999 of the second respondent. The said order reads as under:-
“Nkw;fhZk; jpUf;Nfhapy; Nghh;L Miz vz;.1486 ehs; 12.07.1933d; gb “xU tpyf;fg;gl;l Nfhapy;” vd mwptpf;fg;gl;L cs;sJ. ,f;Nfhapypd; guk;giu mwq;fhtyh;
jpU.v];.rhuq;fghdp fTz;lh; 16.02.1985 md;W fhykhfptpl;likahy; Vw;gl;l fhypaplj;jpy; Nkw;gb jpUf;Nfhapypd; guk;giu mwq;fhtyuhf jk;ik gjpT nra;AkhW md;dhuJ kfd;
jpU.rh.mNrhf;Fkhh; tpz;zg;gpj;Js;s
kDitAk; md;dhh; rkh;g;gpj;Js;s thupRr;
rhd;wpjo; kw;Wk; Vida thhpRjhuh;fspd;
rk;kjf;fbjk; Mfpatw;iwAk; guprPyid nra;J fPo;fz;lthW cj;jutplg;gLfpwJ. “jpU.v];.
mNrhf;Fkhiu (j.ng. rhuq;fghdp
fTz;lh;) ,j;jpUf;Nfhapypd; guk;giu
mwq;fhtyuhf gjpT nra;J ,jd; %yk;
cj;jutplg;gLfpwJ.”
______________
https://www.mhc.tn.gov.in/judis
Page No 14 of 26
W.P.(MD) No.7905 of 2017
27. There are no documents to show that the appointment of the third respondent was in accordance with Clause 4 of the Scheme Decree in O.A.No.7 of 1952. The above order seems to indicate after the death of late.Subramaniya Gounder and after the death of late Sarangapani Gounder, the third respondent was directly recognized as the Hereditary Trustee by applying the principles of primogeniture on the strength of legal heir certificate produced before the second respondent. The order has been procured by the third respondent by producing the legal heirship certificate after the death of his father late Sarangapani Gounder and brother late Velankanni. It is the specific case of the petitioner that after the death of the third respondent's father, the family members were jointly administrating the temple and there was no dispute and that the order dated 06.10.1999 was procured behind the back of the petitioner and the petitioner was unaware of the above facts. There are no documents to show that the petitioner was put to notice before such an order was passed.
28. Under these circumstances, the petitioner has given a complaint to the second respondent Joint Commissioner for recognizing him as Hereditary Trustee in the said temple under Section 54 of the H.R. & C.E. ______________ https://www.mhc.tn.gov.in/judis Page No 15 of 26 W.P.(MD) No.7905 of 2017 Act. The petitioner has also given another complaint to the second respondent Joint Commissioner for malfeasance, misfeasance, mismanagement and misappropriation by the third respondent.
29. In the course of aforesaid proceedings, a report was called for from the Inspector of H.R. & C.E. Department who has given a somewhat ambivalence report. The said report indicates that there is a large scale mismanagement of the funds of the temple and account details were filed up to 2009 and that no documents were filed after 2009 up to 2014.
30. In the report, the Inspector has suggested that action may be taken on the Hereditary Trustee (i.e. third respondent) for the expenses made by him from the collection from the members of the temple for the panguni festival was without informing the H.R. & C.E. Department and without getting pre-permission from the Department contrary to the Rules 3, 7, 10 & 11 of the Collection of Income and Incurring of Expenditure Rules.
31. The Inspector further stated that the jewels belonging to the temple may have been missing as the petitioner has stated that some ______________ https://www.mhc.tn.gov.in/judis Page No 16 of 26 W.P.(MD) No.7905 of 2017 jewels were found to be duplicated and therefore, the jewels may be appraised by the Jewel Appraisers. The Inspector also stated that as administrative defects which were found in the year 1952 were also to be found in the present years, five non-hereditary trustee may be appointed and also an Executive Officer may be appointed to the said temple.
32. The second respondent Joint Commissioner however vide order dated 18.07.2015 signed on 20.07.2015 overlooked the report of the Inspection and concluded that third respondent had discharged the function as Hereditary Trustee properly even if the no accounts were filed for the period between 2010 and 2014 as it was incurred with the signature of the elders of the community. The second respondent Joint Commissioner also stated that the jewels of the temple were appraised by the Jewel Appraiser and were found to be correct and therefore rejected the complaint given by the petitioner for appointment of the Hereditary Trustee of the temple with liberty to approach the Civil Court for the same relief and also rejected another complaint given for the alleged malfeasance, misfeasance, mismanagement and misappropriation by the third respondent.
______________ https://www.mhc.tn.gov.in/judis Page No 17 of 26 W.P.(MD) No.7905 of 2017
33. Aggrieved by the same, the petitioner filed a revision petition under Section 21 of the H.R. & C.E. Act before the first respondent. In the proceedings before the first respondent, the petitioner appears to have taken an additional ground that the appointment of the third respondent as the Hereditary Trustee was behind back of the petitioner.
34. Since the challenge to the appointment of the third respondent was not contested by the petitioner in the year 1999 itself, on the ground of limitation, referring Article 107 of the Limitation Act, 1871, the first respondent has dismissed the revision filed by the petitioner stating that the third respondent has been recognized by the authority for several decades and that the Joint Commissioner had no jurisdiction to decide any rival claims of the office of the Trusteeship.
35. The first respondent further concluded that the right given to the petitioner by the Joint Commissioner to approach the Civil Court has been snuffed by the first respondent by referring to the decision of this Court in A.Krishnaswamy Raja Vs. Krishna Raja and Another, (1968) 1 MLJ 119.
______________ https://www.mhc.tn.gov.in/judis Page No 18 of 26 W.P.(MD) No.7905 of 2017
36. The post of a Hereditary Trustee is both temporal and spiritual. Such a person is not only the manager of the religious institution but also double as the head pontiff.
37. A right to be appointed as a hereditary trustee has to be in consonance of Section 54 of the Tamil Nadu Hindu Religious & Charitable Endowments Act, 1959. Section 54 of the Act reads as under:-
54. Filling up of vacancies in the offices of hereditary trustee.—(1) When a permanent vacancy occurs in the office of the hereditary trustee of a religious institution, the next in the line of succession shall be entitled to succeed to the office.
(2) When a temporary vacancy occurs in such an office by reason of suspension of the hereditary trustee under sub-section (2) of section 53, the next in the line of succession shall be entitled to succeed and perform the functions of the trustee until his disability ceases.
(3) When a permanent or temporary vacancy occurs in such an office and there is a dispute respecting the right of succession to the office, or when such vacancy cannot be filled up immediately, or when a hereditary trustee is a minor and has no guardian fit and willing to act as such or there is a dispute respecting the person who ______________ https://www.mhc.tn.gov.in/judis Page No 19 of 26 W.P.(MD) No.7905 of 2017 is entitled to act as guardian ; or when a hereditary trustee is by reason of unsoundness of mind or other mental or physical defect or infirmity unfit for performing the functions of the trustee, the Joint Commissioner or the Deputy Commissioner, as the case may be, may appoint a fit person to perform the functions of the trustee of the institution until the disability of the hereditary trustee ceases or another hereditary trustee succeeds to the office or for such shorter term as the Joint Commissioner or the Deputy Commissioner as the case may be, may direct.
Explanation.—In making any appointment under this sub-section, the Joint Commissioner or the Deputy Commissioner as the case may be, shall have due regard to the claims of the members of the family, if any, entitled to the succession.
(4) Any person aggrieved by an order of the Joint Commissioner or the Deputy Commissioner, as the case may be, under sub-section (3) may, within one month from the date of receipt of the order by him, appeal against the order to the Commissioner. (5) Nothing in this section shall be deemed to affect anything contained in the Tamil Nadu Court of Wards Act, 1902 (Tamil Nadu Act I of 1902).
38. As per Sub Section 1 to Section 54 of the Tamil Nadu Hindu Religious & Charitable Endowments Act, 1959, where a permanent vacancy occurs in the office of the Hereditary Trustee of a religious institution, the next in the line of succession is entitled to succeed to the ______________ https://www.mhc.tn.gov.in/judis Page No 20 of 26 W.P.(MD) No.7905 of 2017 office. Even when there is a temporary vacancy on account of suspension of Hereditary Trustee, only the person in the next in line of succession is entitled to succeed.
39. As per Sub Section 3 to Section 54 of the Tamil Nadu Hindu Religious & Charitable Endowments Act, 1959, when a permanent or temporary vacancy occurs in an office occurs and/or where there is a dispute respecting the right of succession to the office, or when such vacancy cannot be filled up immediately, or when a Hereditary Trustee is a minor and has no guardian fit and willing to act as such or there is a dispute respecting the person who is entitled to act as guardian, or when a Hereditary Trustee is by reason of unsoundness of mind or other mental or physical defect or infirmity unfit for performing the functions of the Trustee, the Joint Commissioner or the Deputy Commissioner, as the case may be, may appoint a fit person to perform the functions of the Trustee of the Institution until the disability of the Hereditary Trustee ceases or another Hereditary Trustee succeeds to the office or for such shorter term as the Joint Commissioner or the Deputy Commissioner as the case may be, may direct.
______________ https://www.mhc.tn.gov.in/judis Page No 21 of 26 W.P.(MD) No.7905 of 2017
40. The right succeed is confined to the next in line of succession. Such person should have attributed to be appointed to such a post and it is an important post with responsibility.
41. The petitioner’s father late S.Mahalinga Gounder had disability. Therefore, the petitioner’s father late S.Mahalinga Gounder abdicated his right to the office of a Hereditary Trustee in favour of his younger brother late Sarangapani Gounder, the father of the third respondent.
42. Thus, the petitioner’s right to be appointed as Hereditary Trustee was lost long time back. Only a member from the family of the late Sarangapani Gounder could have been considered as a person in the next in line of succession. Therefore, only the third respondent or any other member from the family of late Sarangapani could have been appointed as a Hereditary Trustee.
43. Since the petitioner has no right under section 54 of the H.R. & C.E. Act, 1959, question of limitation though a mixed question of fact in law, is irrelevant. Although, the petitioner has been non suited in the ______________ https://www.mhc.tn.gov.in/judis Page No 22 of 26 W.P.(MD) No.7905 of 2017 impugned order on the ground of limitation, I am of the view, even if the said portion of the order is quashed, it would make no difference as the petitioner has no right to be appointed as the Hereditary Trustee as there were next in line of succession.
44. As admitted the petitioner was not entitled to succeed to the office of the Hereditary Trustee, the application filed under Section 54 of the Act was without any merits. Even if the application of the petitioner under Section 54 of the Act was not time barred, the rejection of the prayer for considering the said application is correct though on an erroneous ground. The petitioner has no right under Section 54 of the H.R. & C.E. Act to be recognized as the Hereditary Trustee after the death of his paternal uncle late Sarangapani.
45. Even if the principles of primogeniture was applied, it is only the third respondent or his elder brother late Velankani who were entitled to be appointed as the Hereditary Trustee.
46. Therefore, I am inclined to uphold the impugned order dated 30.09.2016 of the first respondent rejecting the application filed under ______________ https://www.mhc.tn.gov.in/judis Page No 23 of 26 W.P.(MD) No.7905 of 2017 Section 54 of H.R & C.E Act by the petitioner to claim succession to the office of Hereditary Trustee.
47. There is however no discussion in the impugned order dated 30.09.2016 of the first respondent regarding the grievances of the petitioner that there were alleged malfeasance, misfeasance, mismanagement and misappropriation by the third respondent. To that extent, the impugned order dated 30.09.2016 of the first respondent and the impugned dated 18.07.2015 of the second respondent signed on 20.07.2015 are set-aside and the case is remitted back to the second respondent to take appropriate action on the complaint of the petitioner regarding the alleged large scale malfeasance, misfeasance, mismanagement and misappropriation of funds by the third respondent based on the report 04.08.2014 of the Inspector of H.R &C.E Department.
48. The application of the petitioner alleging malfeasance, misfeasance, mismanagement and misappropriation by the third respondent, as the Hereditary Trustee shall be examined by the second respondent Joint Commissioner denovo and fresh order shall be passed ______________ https://www.mhc.tn.gov.in/judis Page No 24 of 26 W.P.(MD) No.7905 of 2017 by the second respondent Joint Commissioner within a period of three (3) months from the date of receipt of a copy of this order. Needless to state, such order shall be passed after due notice to both the petitioner and the third respondent.
49. While passing such order, the second respondent is directed to consider the report 04.08.2014 of the Inspector of H.R. & C.E. Department and take appropriate action under the provisions of the H.R. &C.E. Act, 1959 if the third respondent is found guilty of any misdemeanour.
50. Writ Petition stands disposed with the above observation. No cost. Consequently, connected Miscellaneous Petition is closed.
14.03.2022 Internet : Yes/No jen / mm To
1.The Commissioner, Hindu Religious & Charitable Endowment Department, Chennai – 600 034.
2.The Joint Commissioner, Hindu Religious & Charitable Endowment Department, Madurai – 625 001.
______________ https://www.mhc.tn.gov.in/judis Page No 25 of 26 W.P.(MD) No.7905 of 2017 C.SARAVANAN, J.
jen / mm Order made in W.P.(MD) No.7905 of 2017 and W.M.P. (MD) No.6129 of 2017 14.03.2022 ______________ https://www.mhc.tn.gov.in/judis Page No 26 of 26