Madras High Court
S.Sethulingam Poosari vs S.R.M.Ramamurthi Poosari on 21 February, 2011
Author: N.Kirubakaran
Bench: F.M.Ibrahim Kalifulla, N.Kirubakaran
IN THE HIGH COURT OF JUDICATURE AT MADRAS Date:21-2-2011 Coram: THE HONOURABLE MR.JUSTICE F.M.IBRAHIM KALIFULLA AND THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN Writ Appeal Nos.527,528,576 & 577 of 2010 AND W.P.(MD)Nos.Nos.3040,3517,4287 of 2010 S.Sethulingam Poosari ... Appellant in W.A.No.527 of 2010 S.Sethulingam Poosari ... Appellant in W.A.No.528 of 2010 S.K.Marimuthu Poosari ... Appellant in W.A.No.576 of 2010 S.K.Marimuthu Poosari ... Appellant in W.A.No.577 of 2010 Vs. 1.S.R.M.Ramamurthi Poosari, Chairman, Board of Trustees, S/o.S.R.Muthuraman Poosari, No.1/128, Melatheri, Ilrukkangudi, Sattur Taluk, Virudhunagar District. 2.The Secretary to Government, Hindu Religious & Charitable Endowments Department, Fort St. George, Chennai-9. 3.The Commissioner, Hindu Religious & Charitable Endowments Department, Nungambakkam, Chennai-34. 4.The Joint Commissioner, Hindu Religious & Charitable Endowments Department, Sivagangai. 5.The Executive Officer, Arulmighu Mariamman Thirukkoil, Irukkangudi, Sattur Taluk, Virudhunagar District. 6.S.A.Rajendran Poosari 7.R.Soundararajan Poosari 8.S.Kathiresan Poosari 9.S.Ramar Poosari, S/o.Sangaralingam Poosari 10.Hariram Poosari 11.R.Maharajan Poosari 12.Ramar Poosari, S/o.Sangiah Poosari. Respondents 6 to 12 are Hereditary Trustees, Arulmigu Mariamman Thirukkoil, Irukkankudi, Sattur Taluk, Virudhunagar District. . Respondent in W.A.No.527 of 2010 1.S.A.Rajendran Poosari 2.S.R.M.Ramamurthi Poosari 3.Hariram Poosari 4.S.Kathiresan Poosari 5.R.Maharajan Poosari Respondents 1 to 5 are Hereditary trustees of Arulmighu Mariamman Thirukkoil, Irukkangudi, Sattur Taluk, Virudhunagar District. 6.The Secretary to Government, Hindu Religious & Charitable Endowments Department, Fort St. George, Chennai-9. 7.The Commissioner, Hindu Religious & Charitable Endowments Department, Nungambakkam, Chennai-34. 8.The Joint Commissioner, Hindu Religious & Charitable Endowments Department, Sivagangai. 9.The Executive Officer, Arulmighu Mariamman Thirukkoil, Irukkangudi, Sattur Taluk, Virudhunagar District. 10.Ramar Poosari 11.R.Soundarajan Poosari 12.S.Ramar Poosari Respondents 12 & 13 are Hereditary Trustees, Arulmighu Mariamman Thirukkoil, Irukkankudi, Sattur Taluk, Virudhunagar District.Respondents in WA.No.528 of 2010 1.S.R.M.Ramamurthi Poosari, Chairman, Board of Trustees, S/o.S.R.Muthuraman Poosari, No.1/128, Melatheri, Ilrukkangudi, Sattur Taluk, Virudhunagar District. 2.The Secretary to Government, Hindu Religious & Charitable Endowments Department, Fort St. George, Chennai-9. 3.The Commissioner, Hindu Religious & Charitable Endowments Department, Nungambakkam, Chennai-34. 4.The Joint Commissioner, Hindu Religious & Charitable Endowments Department, Sivagangai. 5.The Executive Officer, Arulmighu Mariamman Thirukkoil, Irukkangudi, Sattur Taluk, Virudhunagar District. 6.S.Sethulingam Poosari 7.S.A.Rajendran Poosari 8.R.Soundararajan Poosari 9.S.Kathiresan Poosari 10.S.Ramar Poosari, S/o.Sangaralingam Poosari 11.Hariram Poosari 12.R.Maharajan Poosari 13.Ramar Poosari, S/o.Sangiah Poosari. Respondents 6 to 13 are Hereditary Trustees, Arulmigu Mariamman Thirukkoil, Irukkankudi, Sattur Taluk, Virudhunagar District.. Respondents in W.A.No.576 of 2010 1.S.A.Rajendran Poosari 2.S.R.M.Ramamurthi Poosari 3.Hariram Poosari 4.S.Kathiresan Poosari 5.R.Maharajan Poosari Respondents 1 to 5 are Hereditary trustees of Arulmighu Mariamman Thirukkoil, Irukkangudi, Sattur Taluk, Virudhunagar District. 6.The Secretary to Government, Hindu Religious & Charitable Endowments Department, Fort St. George, Chennai-9. 7.The Commissioner, Hindu Religious & Charitable Endowments Department, Nungambakkam, Chennai-34. 8.The Joint Commissioner, Hindu Religious & Charitable Endowments Department, Sivagangai. 9.The Executive Officer, Arulmighu Mariamman Thirukkoil, Irukkangudi, Sattur Taluk, Virudhunagar District. 10.S.Sethulingam Poosari 11.Ramar Poosari, S/o.Sangiah Poosari 12.R.Soundarajan Poosari 13.S.Ramar Poosari, S/o.Sangaralingam Poosari Respondents 12 & 13 are Hereditary Trustees, Arulmighu Mariamman Thirukkoil, Irukkankudi, Sattur Taluk, Virudhunagar District.Respondents in WA.No.577 of 2010 W.P.(MD)No.3040 of 2010 S.R.M.Ramamurthi Poosari.. Petitioner in WP.No.3040/2010 --Versus-- 1.The Secretary to Government, Hindu Religious & Charitable Endowments Department, Fort St. George, Chennai. 2.The Commissioner, Hindu Religious & Charitable Endowments Department, Nungambakkam High Road, Chennai-600 034. 3.The Joint Commissioner, Hindu Religious & Charitable Endowments Department, Sivagangai. 4.The Executive Officer, Arulmighu Mariamman Thirukkoil, Irukkangudi, Sattur Taluk, Virudhunagar District. 5.S.K.Marimuthu Poosari 6.S.Ramakrishnan 7.S.Sethullingam Poosari Respondents 5 to 7 impleaded as per order dated 24.1.2011 made in M.P.Nos.1 & 2/10 & M.P.No.4/10 ... Respondents in WP.(MD)No.3040/2010 W.P.(MD)No.3517 of 2010 1.S.Ramar Poosari 2.R.Soundararajan Poosari 3.S.Kathiresasan Poosari 4.Hariram Poosari 5.R.Maharajan Poosari 6.S.A.Rajendran Poosari ... Petitioners in WP(MD).No.3517/2010 --Versus-- 1.The Secretary to Government, Hindu Religious & Charitable Endowments Department, Fort St. George, Chennai. 2.The Commissioner, Hindu Religious & Charitable Endowments Department, Nungambakkam High Road, Chennai-600 034. 3.The Joint Commissioner, Hindu Religious & Charitable Endowments Department, Sivakasi. 4.The Executive Officer, Arulmighu Mariamman Thirukkoil, Irukkangudi, Sattur Taluk, Virudhunagar District. 5.T.Swaminathan 6.S.Sethullingam Poosari 7.P.C.R.Chellapermal Poosari 8.S.K.Marimuthu Poosari 9.S.Ramakrishnan Respondents 6 to 9 impleaded as per order dated 24.1.2011 made in M.P.Nos.4 & 5/10 & M.P.Nos.1 & 2/10 ... Respondents in WP.(MD)No.3517/2010 W.P.No.4287 of 2010 S.Murugan @ Sakkarai Poosari ..Petitioner in WP.4287/2010 --Versus-- 1.The Commissioner, Hindu Religious & Charitable Endowments Department, Nungambakkam High Road, Chennai-600 034. 2.The Joint Commissioner, Hindu Religious & Charitable Endowments Department, Sivagangai-630 560. 3.The Executive Officer, Arulmighu Mariamman Thirukkoil, Irukkangudi-626 202, Sattur Taluk, Virudhunagar District 4.Minor.R.Selvaram, D/o.late R.Marumuthu Poosari (Hereditary Trustee) duly represented by her natural Guardian and mother M.Navarathinam No.1/128-A, West Street, Irrukandudi-626 202. Sattur Taluk, Virudhunagar District 5.S.R.M.Ramamurthi Poosari 6.R.Soundarajan Poosari 7.S.Kathiresan Poosari 8.S.Ramar Poosari 9.Hariram Poosari 10.S.A.Rajendran Poosari RR.5 to 10 Hereditary Trustees of Arulmighu Mariamman temple, Irukkankudi,Sattur Taluk, Virudhunagar District. RR.5 to 10 impleaded as per order dated 21.1.2011 in M.P.No.2/2010 in W.P.No.4287/2010 ... Respondents in WP.No.4287/2010 W.A.Nos.527,528, 576 and 577 of 2010 Prayer: Theses Writ Appeals are preferred under Clause 15 of Letters Patent Appeal against the order dated 23.12.2009 passed in W.P.No.19636 of 2009, W.P.No.20146 of 2009, W.P.No.19636 of 2009 and W.P.No.20146 of 2009 respectively by His Lordship Mr.Justice K.Venkataraman. W.P.(MD)No. 3040 of 2010 Prayer: This writ petitions is filed under Article 226 of the Constitution of India for issuance of Writ of Certiorari to call for the records pertaining to the O.A.No.4 of 2000 dated 8.1.2010 on the file of the Joint Commissioner, Hindu Religious and Charitable Endowments Department, Sivakasi, the third respondent herein and to quash the same in respect of the petitioner is concerned. W.P.(MD)No. 3517 of 2010 Prayer: This writ petition is filed under Article 226 of the Constitution of India for issuance of Writ of Certiorari to call for the records pertaining to the Suo Motu O.A.No.4 of 2000 dated 8.1.2010 on the file of the Joint Commissioner, Hindu Religious and Charitable Endowments Department, Sivakasi, the third respondent herein and to quash the same. W.P.(MD)No. 4287 of 2010 Prayer: This writ petition is filed under Article 226 of the Constitution of India for issuance of Writ of Mandamus to direct the respondents 1 and 2 to consider the representation dated 29.10.2009 made by the petitioner for his appointment as the Hereditary Trustee of Arulmighu Mariamman Temple, Ilerukkankudi Village, Sattur Taluk and Virudhunagar District within a time frame as may be fixed by this Court. For Appellants :Mr.R.Gandhi, Senior Counsel for Mr.S.Conscious Ilango in W.A.Nos.527 and 528/2010 Mr.R.Thiyagarajan, Senior counsel for M.Muthappan in W.A.Nos.577 and 578 of 2010 For petitioner Mr.K.Alagirisamy Senior Counsel for Mr.S.D.Ramalingam in W.P.Nos.3040/2010 &WP.3517/2010 Mr.S.Subbiah in WP.No.4287/2010 For Respondents:Mrs.Hemasampath, Senior Counsel for Ms.MahathiChari for RR 7 & 9 Mr.R.Shanmugha Sundaram,Senior counsel for Mr.S.D.Ramalingam for RR 6,8,10 & 11 in WA.No.527/2010 Mr.K.Alagirisamy, Senior Counsel for Mr.S.D.Ramalingam for R1 in W.A.No.527/2010 Mr.T.Chandrasekaran, Special Government Pleader for RR.2 to 4 Mr.K.Chandrasekar for E.O. Mr.K.Alagirisamy, Senior Counsel for Mr.S.D.Ramalingam for R7 in W.A.Nos.527 and 528/2010 Mr.R.Ganthi for Mr.Conscious Ilango for R6 Mr.R.Shanmuga Sundaram Senior counsel for S.D.Ramalingam Mr.T.Chandrasekaran Spl.Govt. Pleader for RR 2 to 5 W.A.Nos.577/2010 for R6 to R9 in W.A.No.578 of 2010 Mr.K.M.Vijayakumar for RR 1 to 3 Mr.G.R.Swaminathan for R4 Mr.M.Muthappan for R5 Mr.V.Raghavachari for R6 Mr.R.Gandhi Senior counsel for Mr.S.Conscious Ilango for R7 Mr.K.Chandrasekar In W.P.No.3040 of 2010) Mr.G.R.Swaminathan for R5 Mr.V.Raghavachari for R9 Mr.R.Gandhi Senior counsel for Mr.Coutious Ilango for R6 Mr.J.Vijakumaran for R7 Mr.R.Thiagarajan Senior counsel for Mr.M.Muthappan for R8 Mr.K.Chandrasekar for E.O. (in W.P.No.3517/2010) Mr.T.Chandrasekaran, Special Government Pleader for RR. 1 & 2 Mr.G.R.Suresh for R3 Mr.M.Michael Bharathi for R4 Mr.S.D.Ramalingam for R5 K.Chandrasekar for E.O. (in WP.No.4287/2010) C O M M O N J U D G M E N T
N.KIRUBAKARAN,J.
There are four Writ Appeals namely W.A.Nos.527,528,576,577 of 2010 and three writ petitions namely W.P.(MD).Nos.3040,3517,4287 of 2010 to be decided in these matters. The above proceedings relate to Arul Mighu Irukkan Kudi Mariamman Temple, Irukkan Kudi.
2. Writ Appeals have been filed by S.K.Marimuthu Poosari and S.Sethulingam Poosari against the common order dated 23.12.2009 passed in W.P.Nos.19636 of 2009 and 20146 of 2009 and W.P.No.19636 of 2009 was filed by SRM.Ramamurthi Poosari and 5 others challenging the order dated 18.9.2009 passed by the authorities cancelling the election held on 23.10.2009 to elect managing trustee of the temple and for fresh election and W.P.No.20146 of 2009 was filed challenging the appointment of Mr.Sethulingam Poosari as Trustee till the election was conducted. By the said common order, the learned Single Judge allowed the writ petitions and appointed an advocate Commissioner to conduct the election.
3. W.P.(MD)No.3040 of 2010 has been filed by SRM. Ramamurthi Poosari to quash the order dated 8.1.2010 in suo motu O.A.No.4 of 2000 passed by the third respondent, the Joint Commissioner, HR & CE Department modifying the scheme. Similar relief has been sought in W.P.(MD)No.3517 of 2010 filed by Raman Poosari and 5 others.
4. W.P.(MD)No.4287 of 2010 has been filed by S.Murugan @ Sakkarai Poosari for Writ of Mandamus directing the respondents 1 and 2 to consider his representation dated 29.10.1999 for appointment as hereditary trustee of the temple. For the sake of convenience the parties are referred to as arrayed in W.A.No.576 of 2010.
5. As all the matters relate to administration of Arul Mighu Irukkan Kudi Mariamman Temple, they are dealt with together by this common order.
Brief facts about the background of the case are as follows:
6. Arul Mighu Irukkan Kudi Mariamman Temple, Sattur Taluk, Virudhunagar District is a temple defined under Section 6(20) of the Tamil Nadu Hindu Religious and Charitable Endowment Act and is governed by the scheme framed by the Board of Commissioner, HR & CE, through order No.1000 dated 4.5.1935. In clause VI of the said scheme, the temple and its properties are to be administered and managed by the board of hereditary trustees by nominating and electing one among them to be the Chairman once in three years.
7. The temple was declared "excepted" by the Commissioner, Hindu Religious Endowment, Madras by orders dated 16.8.1926 and the hereditary-ship was recognised by the said order. It is stated in the said scheme a manager was to be appointed by the Board. Subsequently in O.A.No.9 of 1955, by an order dated 31.5.1955, the scheme was modified and an executive officer was appointed by the authority. Thereafter an order dated 23.5.1977 in R.P.No.169 of 1975 was passed. It was decided by the Commissioner, HR & CE in the said order that only the eldest son of the family would be an hereditary trustee as per Primogeniture.
8. Originally, the temple was founded by one Ramaswamy Poosari, who had three sons 1) Sangan Poosari, 2) Muthuraman Poosari and 3) Sothiyan Poosari and the family of the aforesaid trustees in due course of time got expanded and due to which, the dispute arose with regard to who is to be appointed as Hereditary trustee.
9. As there are claims and rival claims with regard to the office of the Hereditary Trusteeship, many proceedings are initiated by the parties before various forums and they are pending. The Joint Commissioner, HR & CE, initiated suo motu application in O.A.No.4 of 2000 under Section 64(5) of the HR & CE Act to modify or cancel the scheme already framed and issued notice to the trustee and other interested parties and the same was pending.
10. When things stand so, the last tenure of Chairman of Board of Hereditary Trustees was to expire on 27.10.2008. Therefore, the then Chairman, issued special meeting notice dated 30.9.2008 to hold special meeting on 13.10.2008 to elect Chairman of the trustees for the period between 28.10.2008 and 27.10.2011. The chairman is to be elected by the existing 11 hereditary Trustees, who are eligible to take part in the election.
11. At that juncture, one Mr.SR.Muthuraman Poosari filed R.P.No.48 of 2008 against S.A.Rajendran Poosari, the seventh responden and S.R.M.Ramamurthi Poosari, S/o.S.R.Muthuraman Poosari, the second respondent before the third Respondent Commissioner and challenged the election notice dated 30.9.2008. The Commissioner, HR & CE, the third respondent on 7.10.2008 stayed the participation of the first respondent (SRM. Ramamurthi Poosari) as an Hereditary Trustee and by an order dated 10.10.2008, the third respondent postponed the election for 10 days and the the election could not be conducted on 13.10.2008. Subsequently also the third respondent Commissioner extended the stay of participation of Mr.SRM.Ramamurthi Poosari, the first respondent.
12. Therefore, SRM.Ramamurthi Poosari, the first respondent, filed W.P.No.9157 of 2008 challenging, proceedings in RP.No.48 of 2008 and then Chairman S.A.Rajendran Poosari, the seventh respondent filed W.P.No.9159 of 2008 for issue of necessary directions to conduct election on 23.10.2008. By common order dated 20.10.2008, Madurai Bench of this court allowed the writ petitions and the existing 11 trustees were allowed to participate in the election to be conducted on 23.10.2009 in the presence of DRO Virudhunagar. In the said order, it was made clear that the writ petitions were ordered subject to out come of the enquiry proceedings pending before the Commissioner, the third respondent.
13. Though the DRO was informed about the order, the DRO sought for postponement of election, as she did not have sufficient time. However on 23.10.2008 a special meeting was held, except Sethulingam Poosari and Ramasami Poosari other hereditary trustees participated and elected the first respondent (Mr.S.R.M.Ramamurthi Poosari) as Chairman of the Board of Trustees in the presence of Executive Officer of the temple. Hence, O.S.No.7380 of 2008 was filed by the sixth respondent (Sethulingam Poosari) before VIII Assistant City Civil Court, Chennai, challenging the trusteeship of 7th respondent (Rajendran Poosari). Another suit O.S.No.8178 of 2008 was filed to declare the election conducted on 25.10.2008 as null and void. Interim order obtained in O.S.No. 8178/2008 was subsequently vacated by this Court in CRP.No.4051 of 2008.
14. Thereafter, the third respondent the Commissioner, HR & CE by order dated 18.9.2009 cancelled the election held on 23.10.2008 and by another order dated 23.9.2009 appointed the sixth respondent (Mr.S.Sethulingam Poosari) as a Fit Person/Chairman of the temple. The aforesaid orders of the Commissioner were challenged by the first respondent (SRM.Ramamurthi Poosari) in W.P.No.19636 of 2009 and seventh respondent (SA.Rajendran Poosari) and 5 others in W.P.No.20146 of 2009. After hearing the parties, this court by common order dated 23.12.2009 set aside the order cancelling the Election on the ground that no notice was given to the elected chairman and further directed the election to be conducted in the presence of DRO by the Advocate Commissioner appointed by this court. The appointment of the sixth respondent (Mr.Sethulingam, Poosari) as a Fit Person was also set aside. The said common order dated 23.12.2009 passed in W.P.Nos.19636 and 20146 of 2009 is being challenged in these Writ Appeal Nos.576,577 of 2010 by S.K.Marimuthu, appellant herein and S.Sethuraman Poosari the sixth respondent, by W.A.Nos.527 and 528l of 2010.
15. Subsequent to the orders passed by this court on 23.12.2009 in the above writ petitions, the court appointed advocate commissioner issued notice to all the trustees for the election to be held on 19.3.2010. Before that on 18.3.2010 these writ appeals have been filed against the common order dated 23.12.2009 passed in W.P.Nos.19636 and 20146 of 2009 and an interim order was obtained. Even before that, the third respondent, Joint Commissioner passed orders in OA.No.4 of 2000 dated 8.1.2010, which was signed on 9.3.2010. In the said order, the third respondent, determined the number of the hereditary trustees as '6' and modified the scheme. The said order dated 9.3.2010 passed in suo motu O.A.No.4 of 2000 is being challenged in W.P.(MD)No.3040 of 2010 by SRM Ramamurthi Poosari and in W.P.(MD)No.3517 of 2010 filed by S.Ramar Poosari and 5 others.
16. W.P.(MD)No.4287 of 2010 has been filed by S.Murugan @ Sakkarai, S/o.late Subbiah Poosari seeking writ of mandamus directing the respondents 1 and 2 to consider his representation dated 29.10.1999 for his appointment as an hereditary trustee of the said temple contending that one Marimuthu Poosari was functioning as Hereditary Trustee and he died on 23.10.2009. In that place Murugan seeks to be appointed as hereditary trustee contending that he is the eldest son of the family.
17. The contentions of Mr.R.Gandhi, learned senior counsel appearing for Mr.Sethulingam Poosari, sixth respondent, the appellant in W.A.No.527 and 528 of 2010 and R6 in W.P.No.3517 of 2010 and R7 in W.P.No.3040 of 2010 are that:
a) There are only six hereditary trustees from 1926 onwards.
b) Persons who are not eligible to be appointed as an hereditary trustees are functioning as hereditary trustees.
c) As the fourth respondent, Joint Commissioner already passed orders in suo motu, O.A.No.4 of 2000 on 9.3.2010 declaring that there are only " 6 " hereditary trustees, election to the post of managing trustee has to be conducted only with collegium of "6" hereditary trustees and not with "11" hereditary trustees.
d) Against the order passed in suo motu petition, an alternative remedy is available under the Statue and therefore writ petition is not maintainable.
e) When the order passed in suo motu proceedings is found to be a wrong, the matter can only be remanded and till that time, no election could be conducted.
f) First respondent and others (Writ petitioners in W.P.Nos.3040 and 3517 of 2010 stated in paragraphs 5,6,7 of the writ petitions that all male members are hereditary trustees and after 1977, only, the eldest son alone to become the hereditary trustee. In view of writ petitioners' contra stand, rejudicata will come into play to bar the claim of the petitioner that all sons succeed as hereditary trustees.
And he seeks for allowing of the Writ Appeal Nos.527 and 528 of 2010 and dismissal of the W.P.(MD)Nos.3040 and 3517 of 2010.
18. The Mr.R.Thiagarajan, learned senior counsel appearing for SK.Marimuthu Poosari, the appellant in W.A.Nos.576 and 577 of 2010 and R5 in writ petition (MD)No.3040 of 2010 and for R8 in W.P.(MD)No.3517 of 2010 made the following submissions:
a) As per law declared by the Hon'ble Supreme Court in Commissioner HR&CE (Admn) Vs. Vedantha Sthapna Sabha 2004 (6) SCC 497, all male members of the family are entitle to become trustees.
b) The order passed by the Commissioner in RP.No.169 of 1975 dated 23.3.1977 is nullity.
c) He referred to the memo of compromise and the consent decree passed in O.S.No.135 of 1977 to contend that about 20 persons were agreed to be the hereditary trustees and many of them are not eldest members and therefore, hereditary trusteeship cannot be restricted to eldest male member of the family alone.
19. Mr.V.Raghavachari, learned counsel appearing for Ramakrishnan-R6, in W.P.No.3040 of 2010 and R9 in W.P.No.3517 of 2010 submitted that:
a) The writ petition is not maintainable, as there is a efficacious alternative remedy available under the Statue against the suo motu order.
b) The order only confirmed old scheme and does not introduce anything new.
c) Petitioners in W.P.Nos.3040 and 3517 of 2010 admitted that there are only "6" hereditary trustees in the written statement filed in O.S.No.54 of 2007.
d) Any attempt to hold office of the hereditary trustees based on the alleged compromise made in O.S.No.135 of 1977 is contrary to the provisions of the statute and perse illegal.
He relied upon the following judgements namely:
1) 2009 16 SCC 601 (Union of India and another vs. Bilash Chand Jain and another)
2) 1998 6 SCC 643 (T.Lakshmikumara Thathachariar vs. Commissioner, H.R. & C.E. and others
3) 2010 7 SCALE 428 (Shalini Shyam Shetty and another vs. Rajendra Shankar Patil)
4) AIR 1984 Orissa 213 (Sanyasi Jena and others vs. Mina Jena and others) Therefore, he seeks for dismissal of the writ petitions.
20. The contentions of Mr.K.Chandrasekar, learned counsel appearing for the Executive Officer of the temple Viz. R4 in W.P.No.3040 of 2010, R5 in W.P.No.3517 of 2010, R3 in W.P.No.4287 of 2010, R5 in all Writ Appeals are that:
a) Statutory scheme cannot be replaced or modified by non-statutory communications of HR & CE authorities.
b) Order passed in suo motu petition is to be set aside in the manner known to law.
c) Hereditary Trustees have to be restricted only to "6" as per suo moto order
d) Issuance of notice to unnecessary person is not necessary and there is no violation of principles of natural justice. Therefore he seeks for dismissal of the writ petition. He relied upon a judgement of the Supreme Court in commissioner HR&CE (Admn) Vs. Vedantha Sthapna Sabha 2004 (6) SCC 497.
21. The contentions of Mr.Sriram, learned counsel appearing for 7th respondent in W.P.No.3517 of 2010 are as under:
a) All the male members of the family are hereditary trustees and the same is recognised by custom and usage.
b) Commissioner has no jurisdiction to decide about the number of hereditary trustees and take a decision regarding restriction of trusteeship except framing of scheme or modifying the scheme.
c) Compromise decree passed in O.S.No.139 of 1977 recognises about 20 persons as hereditary trustees and HR & CE authorities need not to be the party to compromise and that private parties are at liberty to compromise.
d) No proof was available for the Commissioner in 1977 to conclude that the eldest son of the family alone could become as the hereditary trustee.
e) The said order made in RP.No.169 of 1975 deprived the right of other parties regarding trusteeship without hearing them.
f) Order in RP.No.167/1975 was not acted upon/implemented by recognising the eldest member as Hereditary Trustee.
g) There are instances where brothers are appointed as hereditary trustees.
h) The 7th respondent in W.P.No.3517 already filed a statutory appeal in A.P.No.27 of 2010 against the suo motu proceedings in O.A.No.4 of 2000 dated 8.1.2010.
i) That apart O.S.No.54 of 2007 filed by PCR Chellaperumal Poosari (Seventh respondent in W.P.No.3517/2010) on the file of Sub-Court, Sivakasi is for declaration that all the poosaries of the temple are hereditary trustees to administer the temple and to take part in the election of managing trustee and other reliefs and the same may be directed to be disposed of at the earliest stage.
22. The contentions of Mr.K.Alagiriswamy, learned Senior Counsel appearing for the first respondent in W.A.Nos.527 and 576 of 2010 and R2 in W.A.No.528 and 577 of 2010 and for the writ petitioner in W.P.(MD) No.3040 of 2010, W.P.(MD)No.3517 of 2010 and for R5 to R10 in W.P.(MD)No.4287 of 2010 are as follows:
a) The common order dated 23.12.2009 passed in W.P.No.19636 of 2009 and W.P.No.20146 of 2009 is only a consequential order of this Court, pursuant to the order dated 7.10.2008 passed in the earlier writ petition W.P.No.8872 of 2008.
b) There was no appeal filed against the earlier order passed on 7.10.2008 and therefore, the appellant cannot maintain the present appeals against the consequential orders passed on 23.12.2009.
c) This court only directed to conduct the election of the managing trustees and therefore no prejudice is caused to any of the parties by election.
d) 11 hereditary trustees have been right from 1952.
e) The order passed in Suo motu application No.4 of 2000 restricting the hereditary trustees to "6" is contrary to custom and usage and records.
g) While modifying the scheme by the suo motu order, the Joint Commissioner, did not follow Rule 2(a) (b)(c) of "Framing of scheme Rules" by inviting objections or suggestions with regard to settlement/modification of the scheme.
h) The terms of the proposed modification was not published and objections were not called for.
i) No notice to interested persons were specifically served upon violating the principles of natural justice.
j) When the department itself has been recognising 11 trustees, Joint Commissioner, the fourth respondent cannot restrict/reduce to "6".
k) Section 6(11), which defines hereditary trustee recognises usage. In this case 11 trustees are recognised for many years and it is accepted as usage.
l) Under the scheme of the Act 11 hereditary trustees cannot be restricted. There is no admission on the part of the petitioner that there are only "6" hereditary trustees and said that what was the position in 1935 and it cannot be deemed as admission. Therefore suo motu order has to be set aside for violation of rules.
He relied upon the following judgement:
AIR 1972 Madras 119 (Venkatraman vs. L.A.Thangappa Gounder)
23. Mr.Shanmugasundaram, learned Senior Counsel appearing for respondents 7,9,10 and 11 in W.A.Nos.527 of 2010 pointed out that the department admitted "11" hereditary trustees in the written statement filed in O.S.No.54 of 2007 and in fact 11 trustees were recognised by the Division Bench of this Court by order dated 13.9.2005 made in W.A.Nos.338 and 339 of 2005. He seeks for dismissal of the writ appeals and allowing of the writ petitions.
24. Mr.T.Chandrasekaran, learned Special Government Pleader appearing for the authorities supported the impugned order passed in the suo motu petitions and submitted that the impugned order has been passed in tune with the order dated 16.8.1926 and in the order dated 23.5.1977 made in R.P.No.169 of 1975 and that after following the proceedure only, the scheme was modified. He further submitted that during 1976, inadvertently some of the male members of the family were recorded as successors, contrary to the order passed in R.P.No.169 of 1975 and that mistake is sought to be rectified by the suo motu order and therefore, it cannot be found fault with. In fine, he supported the impugned order.
25. Mrs.Hemasampath, learned senior counsel appearing for respondents 7 and 9 in WA.No.527 of 2010, For respondents 10 to 12 in W.A.No.528 of 2010 For respondents 8 and 10 in W.A.No.576 of 2010 For respondents 12 and 13 in W.A.No.577 of 2010 supported the contentions of Mr.K.Alagirisamy, learned senior counsel and Mr.R.Shanmugasundaram, learned Senior counsel.
26. Heard the rival contentions and perused the records. Though many points argued, the following two material points arise for considerations:
1) Whether order of the single judge is right?
2) Whether suomotu order dated 8.1.2010 is valid?
3) Whether writs are maintainable due to statutory appeal?
4) Whether number of hereditary trustees can be changed?
1. WHETHER THE ORDER OF THE LEARNED SINGLE JUDGE IS RIGHT?
27. As stated earlier this court directed by order dated 20.10.2008 in W.P.Nos.9151 and 9157 of 2008 to conduct the election and accordingly election was conducted on 23.10.2008 electing Mr.SRM.Ramamurthi Poosari, the second respondent as the Chairman. However, the third respondent Commissioner by order dated 18.9.2009 unilaterally cancelled the election and by order dated 23.9.2009 appointed the sixth respondent (Sethulingam Poosari) as a fit person/chairman by Commissioner, HR & CE after the election was over. Both orders were challenged in W.P.Nos.19636 and 20146 of 2009 and both the writ petitions were allowed appointing an advocate commissioner to conduct the election. In the appeal it is contended by the appellants that the writ petitions should have been dismissed on the ground of alternative remedy and the order should not have been set aside for violation of principles of natural justice.
28. It is seen, subsequent to the orders dated 20.10.2008 passed by this court in W.P.Nos.9159 and 9157 of 2008, election was conducted on 23.10.2008 electing 7th respondent (S.A.Ramamurthi Poosari) as the Chairman without notice to the elected chairman, the third respondent Commissioner set aside the said election on the ground that the DRO was not present as per the order of this court. Before cancelling the election held, the third respondent Commissioner should have issued notice to SRM.Ramamurthi Poosari.
29. As far as writ appeals Nos.576 and 577 of 2010, filed by S.K.Marimuthu are concerned, the learned Judge came to the conclusion that the election was unilaterally cancelled and paragraph 17.1 of the order is extracted here under:
"17.1. The next contention that has been raised on behalf of the petitioners are that the Commissioner, HR. CE. had cancelled the election already held, by his proceedings dated 18.09.2009, without due notice to them and without hearing them. It has alternative remedy available under the said Act. Section 114 of the said Act contemplates filing of the suit.
(a) Mr.R.Gandhi, learned Senior Counsel appearing for the contesting respondent viz., 5th respondent in both the writ petition as well as Mr.T.Chandrasekaran, learned Special Government Pleader appearing for the Department vehemently contended that when an alternative remedy is available, the petitioners cannot approach this Court by filing the present writ petitions exercising the power under Article 226 of the Constitution of India.
(b) On the other hand, it was contended on behalf of the petitioners that such an alternative remedy, if not effective or if the impugned orders were passed violating the principles of natural justice, without availing the alternative remedy, a writ petition could be maintained before this court.
(c) Anxiously considered the said contention raised in this regard. However, I am of the considered view that the said contention raised by the contesting respondent viz., fifth respondent in both the writ petitions as well as the Department, has to be rejected on the following grounds:-
(i) If the impugned orders have been passed violating the principles of natural justice, still the parties cannot be driven to exhaust the alternative remedy available under the said Act. In the case on hand, the Commissioner, H.R. & C.E., has passed the order dated 18.09.2009 setting aside the election already conducted without even notice to the persons, who have been elected thereby violated the principles of natural justice.
(ii) Further, the alternative remedy available should be effective and efficacious. To drive the parties to file a suit to set at naught the order passed by the Commissioner, H.R. & C.E., who has set aside the election, would not be efficacious remedy, since it will take very number of years to see the finality in the suit.
(d) Hence, on the grounds set out above, I am of the considered view that even though there exists an alternative remedy, the parties cannot be driven to exhaust the same. Thus, the contention raised by the Department as well as the fifth respondent in both the writ petitions, is liable to be rejected and accordingly rejected.
Learned Single Judge rightly held that the order dated 18.9.2009 is bad for violation of principles of natural justice. As the cancellation of election was set aside on the ground of violation of principles of natural justice, the learned Judge rightly held that there is no question of availing alternative remedy and further held that it would not be a efficacious remedy as it would take number of years to see finality in the suit. The Hon'ble Supreme Court in Harbansal Sahaia vs. Indian Oil Corporation Limited reported in 2003 2 SCC 107 held that rule of exclusion of writ jurisdiction by availability of alternative remedy is a rule of discretion and not one of compulsion and further held that if there is a failure of principles of natural justice, the writ jurisdiction can be invoked. It is also settled law that availability of alternative remedy is not absolute bar for invoking Article 226 of the Constitution of India. In this case, learned Single Judge rightly came to the conclusion that principles of natural justice has been violated and allowed the writ petitions and therefore the same cannot be found fault with.
30. As far as other writ appeals in W.A.Nos.527 and 528 of 2010 are concerned, the fifth respondent S.Sethulinga Poosari was appointed as a temporary chairman without giving any reason as to why he has been appointed as a fit person. When the commissioner third respondent passed the order appointing the sixth respondent as a fit person/chairman of the board of trustees, after superseding the election conducted, the Commissioner should have given the reasons for the same. However no reason was given and therefore, learned Judge rightly set aside the appointment of the sixth respondent, Sethulingam Poosari as chairman/fit person and further directed the election to be conducted by the Advocate Commissioner and paragraph 19 of the learned Single Judge's Order reads as follows:
"19. The next question that arises for consideration is, whether the first respondent viz., the Government is justified in appointing the Fit Person/Chairman of the Board of Trustees. The said order also points out that the second respondent pointed out that election was originally conducted without the presence of the District Revenue Officer, Virudhunagar, thereby violating the orders made in W.P.Nos.9157 and 9159 of 2008. The order in question was made only on the recommendation made by the second respondent. The discussion made above will amply prove that the second respondent has passed the impugned order dated 18.09.2009 without affording opportunity to the petitioner which deserves to be set aside. While so, on his recommendation, the fifth respondent was appointed as temporary Chairman without any rhyme or reason. It is not made clear why the fifth respondent was appointed so. Hence, the order of the first respondent has to go."
The reasonings given by the learned Single Judge for allowing the writ petitions are justifiable and there is no occasion for this court to differ with the said reasonings given by the learned Single Judge and therefore, the writ appeals are dismissed.
31. As per the learned Single Judge's order, the Advocate Commissioner is hereby directed to conduct election of Managing Trustee within one month from the date of the receipt of the copy of the order. All the parties are directed to co-operate with the Advocate Commissioner for smooth conduct of election.
2. WHETHER SUOMOTU ORDER DATED 8.1.2010 IS VALILD?
32. It is stated by the HR & CE Department in paragraph 4 of the counter affidavit that certain provisions of original scheme framed in O.A.No.160 of 1934 and as amended in O.A.No.9 of 1955 are found in existence repugnant to the provisions of the present Act. The fourth respondent/Joint Commissioner initiated suo motu proceedings under Section 64(5) (a) read with Section 118(2)(6) of the Act in O.A.No.4 of 2000 and issued notice of enquiry to the trustees about the intention to modify the scheme in conformity with the provisions of the present Act. After receiving objections and suggestions and after hearing the parties, order in suo motu No.4 of 2000 restricting the number of Hereditary Trustees as "6" was passed on 8.1.2010.
33. Mr.K.Alagirisamy, learned Senior counsel appearing for the petitioner submitted that the Joint Commissioner, HR & CE has power under Section 64(5) (a) of the Act to modify or cancel the scheme. However, he pointed out while modifying the scheme, the procedure as contemplated in "framing scheme rules" was not followed. He referred to rule 2(a) (b) and submitted that there was violation of the said rules while modifying the scheme and therefore, the order is liable to be set aside. Secondly he submitted that under the guise of modification of the scheme, the existing "11" hereditary trustees cannot be restricted to "6".
34. Section 64 of the Tamil Nadu Hindu Religious and Charitable Endowment Act 1959 reads as follows:
"64. Power of Joint Commissioner or Deputy Commissioner to settle schemes. -- (1) When the Joint Commissioner or the Deputy Commissioner, as the case may be, has reason to believe that in the interest of the proper administration of an institution, a scheme should be settled for the institution, or when not less than five persons having interest make an application, in writing, stating that in the interest of the proper administration of an institution a scheme should be settled for it, the Joint Commissioner or the Deputy Commissioner, as the case may be, shall consult in the prescribed manner the trustee and the persons having interest and if, after such consultation, he is satisfied that it is necessary or desirable to do so, he shall, by order, settle a scheme of administration for the institution. Explanation. -- For the purposes of this section, "institution" means a temple or a specific endowment attached to a temple. (2) A Scheme settled under sub-section (1) of an institution may contain provision for --
(a) removing any existing trustee, whether hereditary or non-hereditary:
Provided that where provision is made in the scheme for the removal of a hereditary trustee, provision ahall also be made therein for the appointment as trusstees of the person next in succession who is qualified;
(b) appointing a new2 trustee or trustees in the place of, or in addition to, any existing trustee3 or trustees;
(c) defining the powers and duties of the trustee or trustees:
Provided that in making any provision of the nature specified in clause (b) due regard shall be had to the claims of persons belonging to the religious denomination for whose benefit the institution is chiefly intended or maintained.
(3) The Joint Commissioner or the Deputy Commissioner as the case may be, may determine what the properties of the institution are and append to the scheme a schedule containing a list of such properties.
(4) Pending the settlement of a scheme for an institution, the Joint Commissioner or the Deputy Commissioner, as the case may be, may appoint a fit person to perform all or any of the trustees thereof and define his powers and duties.
(5) (a) The Joint Commissioner or the Deputy Commissioner, as the case may be, may, at any time, after consulting the trustee and the persons having interest (****), by order, modify or cancel any scheme in force settled under sub-section (1) or any scheme is force settled or modified by the Board under the Tamil Nadu Hindu Religious Endowments Act, 1926 Tamil Nadu Act II of 1927, or deemed to have been settled under that Act, or any scheme in force settled or modified by the Joint Commissioner or the Deputy Commissioner, as the case may be, or the Commissioner under this Act, or any scheme in force settled or modified by the Court in a suit under sub-section (1) of section 70, or on an appeal under sub-section (2) of that section or any such scheme in force deemed to have been settled or modified by the Court under clause (a) of sub-section (2) of section 118:
Provided that such cancellation or modification of a scheme in force settled or modified by the Court in a suit under sub-section (1) of section 70 or on an appeal under sub-section (2) of that section or of a scheme in force deemed to have been settled or modified by the Court under clause (a) of sub-section (2) of Section 118 shall be made only subject to such conditions and restrictions as may be prescribed.
(b) If the Joint Commissioner or the Deputy Commissioner, as the case may be, is satisfied that any such scheme referred to in clause (a) is inconsistent with this Act and the rules made thereunder, he may, at any time, after consulting the trustee and the persons having interest in the institution, (**********) modify it in such manner as may be necessary to bring it into conformity with the provisions of this Act and the rules made thereunder.
(6) Every order of the Joint Commissioner or the Deputy Commissioner, as the case may be, settling modifying or cancelling a scheme under this section shall be published in the prescribed manner and on such publication shall, subject to the provisions of Sections 69 and 70 be, binding on the trustees, the executive officer and persons having interest."
A bare reading of Section-64 would reveal that the Joint Commissioner or Deputy Commissioner has power under Section 64(1) to settle the scheme and to modify the scheme under Section 64(5) (a) of the Act. There is no dispute in this regard. The judgement of the Hon'ble Supreme Court in T.Lakshmikumara Thathachariar vs. Commissioner HR & CE and others reported in 1998 (6) SCC 643 declared that the Joint or Deputy Commissioner has power to modify the scheme. However what is to be seen in this case is as to whether the fourth respondent, Joint Commissioner correctly followed the procedures embedded in the Statue and the rules while modifying the scheme. VIOLATION OF RULES
35. It is seen from the records produced by the HR & CE that in O.A.No.4 of 2000 to modify the scheme, notice dated 28.2.2000 was issued. The said notice was issued to the Trustees and Poosaries. Very same notice was issued again on 14.3.2000 and 17.11.2005 without any change. Various persons filed their objections to the suo motu proceedings. The file produced by the department shows that rules were not followed during suo motu proceedings. Rule 2(a) (b) "framing of scheme rules" are extracted as follows:
" 2.The consultation required under sub/sections (1), 5(a) and 5(b) of Section 64 shall be made in the following manner.
(a) When the Joint/Deputy Commissioner proposes on his own motion to take action under sub-section (1) or 5(a), or (5) (b) of Section 64 in respect of any institution coming under that section or where an application under sub-section (1) is received by him, he shall give notice of his proposal or the application, as the case may be, to the trustee or the trustees and the Assistant Commissioner, if any, having jurisdiction over the institution and the persons having interest calling upon them to submit any representation they may which to make before a date to be specified in such notice, which shall not be less than two months from the date of its issue.
(b) If, after a consideration of the objections, or suggestions, if any received by him, he has reason to believe that a scheme should be settled, or modified or cancelled, he shall give notice to the trustee or the trustees, Assistant Commissioner, if any having jurisdiction over the institution and the persons having interest, of his intention to settle, modify or cancel a scheme of administration for the institution and call upon to submit in writing any objections or suggestions they may wish to make before the date specified in such notice for an enquiry.
(c) The notice under sub-rules (a) and (b) shall be sent by registered post to the trustees or the trustees and to the Assistant Commissioner concerned and the persons having interest. A copy of the notice shall be affixed on the notice board or front door of the temple and in the case of a specific endowment attached to a temple, on the notice board or front door of the temple to which the specific endowment is attached, on the notice board of the Joint/Deputy Commissioner, and on the notice board of the office of the Assistant Commissioner within whose division the institution is Council including the Corporation of Chennai or village chavadi concerned. Such affixture shall be deemed to be sufficient intimation to persons having interest. All representations submitted in time by the trustee or the Assistant Commissioner, if any or persons having interest shall be taken into consideration by the Joint/Deputy Commissioner in setting, modifying or cancelling the scheme."
36. Under Rule 2(a), if the Joint Commissioner proposes to take action under Section 64(5)(a) to modify the scheme, he has to give notice of his proposal to the trustees and other persons having interest, calling upon them to submit their representations/objections. In this case suo motu notice dated 28.2.2000 was issued calling for objections and suggestions.
37. Under Rule 2(b), the Joint Commissioner after considering objections/suggestions, if he has reason to believe that the scheme should be modified, again he is required to give notice to the trustees and interested persons about his intention to modify the scheme calling upon to submit any objections/suggestions in writing. When the Scheme Rules prescribed a procedure, the same is required to be followed in the same manner and any violation would result in vitiation of proceedings. Files produced would reveal that notices issued are one and the same, except the change in hearing dates. Further it is evident from the records that after receiving objections/suggestions, the Joint Commissioner did not issue any notice expressing his intention to modify the scheme and call for any objections as per 2(b) of "Framing of Scheme Rules". Violation of Rule 2(b) is apparent on the face of the records and the impugned suo motu order has been passed without following the procedure under Rule 2(b) of (Framing of Scheme) Rules.
38. It is the basic principle of law that if the power is given to do certain thing in a certain way, the thing must be done in that way or not at all. The following judgements which laid down the above dictum are in Taylor vs Taylor reported in 1876 1 Ch.D426, and the judgement in Nazir Ahmad -vs- Emperor reported in AIR 1936 Privy Council 253, in State of Uttar Pradesh -Vs- Singhara Singh and others reported in AIR 1964 SC 358, Babu Verghese -vs- Bar Council of Kerala and others reported in 1999 (3) SCC 422, in Ramchandra Murarilal Bhattad and others -vs- State of Maharashtra and others reported in 2007 (2) SCC 588 and in Indian Banks' Association, Bombay and others -vs- Devikala Consultancy Service and others reported in (2004) 11 SC 1, in Chandrakishore Jha -vs- Mahavir Prasad reported in AIR 1999 SC 3558 and Gujarat Urija Vikash Nigam Ltd. vs. Essar Power Ltd. Reported in 2008 (4) SCC 755."
Therefore, for violation of Rule the suo motu order is liable to be set aside. Therefore, there is no necessity to consider all other pleas made by other parties including HR & CE in support of Suo Motu order.
CONDUCT OF THE DEPARTMENT
39. The order dated 8.1.2010, appears to have been passed, only when this court directed the conduct of election by the advocate commissioner by an order dated 23.12.2009 in W.P.Nos.19636 and 20146 of 2009. It is very clear that the department was not interested in conducting the election and it wants to side with one group when another person was already elected pursuant to the orders dated 20.10.2008 passed W.P.Nos.9157 and 9158 of 2008. Election of SRM.Ramamurthi Poosari, the first respondent was superseded by the Commissioner and S.Sethulinga Poosari was appointed as a fit person till the election was over. If the election was not conducted in compliance with Court's orders, the Commissioner, the third respondent should have set aside the election and ordered re-election and till that time the out going managing trustee Rajendran Poosari should have been allowed to continue. However, without any rhyme or reason S.Sethulinga Poosari was appointed. Again those orders namely superseding of election and appointment of Sethulingam Poosari as a fit person were quashed by the learned Single Judge by order dated 23.12.2009. In the earlier part of this order, this court already dismissed the writ appeals confirming the learned Single Judge's order dated 23.12.2009.
40. That apart, the suo motu proceedings was initiated as early as in 2000 and no progress was shown for the past 10 years. During this period about two elections were already conducted with existing collegium of "11" trustees. Twice elections were conducted as found by the learned Single Judge in his order dated 20.10.2008 in W.P.Nos.9157 and 9159 of 2008. Moreover, by order dated 19.2.2007 this court in W.P.No.17952 of 2004 filed by S.Murugan @ Sakkarai Poosari and S.Dharmalingam Poosari directed the third respondent, Joint Commissioner to decide O.A. Within two months. Even thereafter, the matter was not decided. Subsequently by order dated 7.10.2008 passed in W.P.(MD) Nos.8870 to 8872 of 2008 filed by P.C.R.Chellaperumal Poosari, Madurai Bench of this Court directed the Joint Commissioner to dispose of suo motu O.A.No.4 of 2000 within 6 months time. The O.A. Was not disposed of within 6 months. However, authorities got extension of three months time on 23.7.2009. The said time frame was also not adhered by the HR & CE authorities. Only when the election was ordered to be conducted, by order dated 23.12.2009 by the Advocate Commissioner within one month, suo motu order was passed hurriedly on 8.1.2010 and signed on 9.3.2010 restricting the number of hereditary trustees from 11 to 6. This Court therefore finds total lack of bonafides in the passing of the said order. The authority cannot take sides with trustees and they should discharge their duties according to law especially when it is concerned with administration of the temple. Therefore, it is evident when the election became inevitable, the Joint Commissioner in an attempt to dilute the directions of this court passed the order in suo motu application hurriedly in the manner unknown to law.
3. WHETHER WRITS ARE MAINTAINABLE DUE TO STATUTORY APPEAL?
41. Mr.R.Gandhi, Mr.V.Raghavachari, Mr.T.Chandrasekaran, Special Government Pleader and Mr.K.Chandrasekar vehemently questioned about the maintainability of the writs in view of the statutory appeal. No doubt, an appeal lies to the Commissioner under Section 69 of the Act against the orders of the Joint Commissioner. However, as noted above when the suo motu order has been passed in violation of the rules and principles of natural justice, there is no necessity for the petitioner to file the Statutory appeal. That apart the Joint Commissioner has no jurisdiction to reduce the number of hereditary trustees under Scheme of the Act. He has power only to suspend or remove the hereditary trustee under Section 53 of the Act and not to reduce the number of hereditary trustee post. The fourth respondent did not disclose in the proceedings, his intention to reduce the number of hereditary trustees. Therefore, the fourth respondent cannot decide and reduce the number of hereditary trustees unilaterally without notice. However, in this case, without jurisdiction and power the number of Trustees were reduced from 11 to 6 in violation of rules and procedures.
42. It is not stated in the impugned order, who are all the hereditary trustees whose trusteeships are reduced. The trustees whose posts sought to be removed were not given individual notice and heard before passing the order. Hence the order is bad for violation of principles of natural justice. In these circumstances, the writ petitioners need not be driven to file Statutory appeal. The judgements of Apex Court in Harbanslal Sahaia vs. Indian Oil Corporation Ltd. Reported in 2003 (2) SCC 107, whirl Poor Corporation vs. Registrar of Trade Marks reported in 1998 (8) SC 1 and Mumtaz Post Graduate Degree College vs. Vice Chancellor reported in 2009 (2) SCC 630 support the above position. This court's jurisdiction is well settled to entertain writ petition, inspite of availability of alternative remedy, when there is violation of rules and the principles of natural justice. That apart,as found earlier,there is a malafide intention on the part of the respondents to side with some of the parties and to circumvent the directions of this Court to conduct the election with the existing collegium of "11" hereditary trustees. Therefore, the writ petitions are maintainable even though there is an alternative remedy by way of appeal to the Commissioner.
4. WHETHER THE NUMBER OF HEREDITARYL TRUSTEES CAN BE CHANGED?
43. Mr.R.Gandhi, learned Senior counsel submitted that the suo motu order dated 8.1.2010 rightly restricted and determined the hereditary trustees as "6" and it is tune with the Board's order dated 10.8.1926 and the order dated 23.5.1977 and that by virtue of the said orders, the persons who entered illegally in the trust board were rightly barred and supported the suo motu order. Whereas Mr.R.Thiagarajan, learned Senior Counsel submitted that all male members of the family are entitled to become Hereditary Trustees. On the other hand Mr.K.Aalagirisamy, learned Senior counsel appearing for the first respondent and the petitioners W.P.Nos.3040 and 3517 of 2010 submitted that "11" hereditary trustees were appointed that has been in vogue as custom and usage. The custom and usage has been regulated by order dated 23.5.1977 restricting the hereditary trusteeship only to the eldest male member of the family.
44. The following proceedings/documents throw light upon the number of hereditary trustees are in existence right from 1926 onwards. A perusal of the Board's order dated 16.8.1926 would reveal that there were "6" trustees at that time and the office of the trusteeship were hereditary in nature.
a) The extract of the register maintained by the temple during 1945 to 1957 proves the presence of "11" hereditary trustees at that point of time.
b) The proceedings in O.A.No.20 of 1966 initiated by the Commissioner, HR & CE contained names of "10" hereditary trustees.
c) The department admitted in the counter affidavit filed in W.P.No.2547 of 1968 by S.P.Ramasamy Poosari that 10 hereditary trustees were functioning.
d) In Suo motu proceedings in O.A.No.8 of 1973 initiated by the Deputy Commissioner under Section 64(5)(b) of the Act to modify the scheme, "11" persons were named as hereditary trustees.
e) "9" hereditary trustees were named in the communication dated 17.6.1975 and 20.6.1975.
f) In the counter affidavit filed by the Department in W.P.No.4433 of 1995 filed by SR.Muthuraman Poosari recognised "11" hereditary trustees. In the said counter, the claim of SR.Muthuraman Poosari that 17 hereditary trustees were there was denied by the department.
g) The department's communication dated 28.7.1980 speaks about "9" hereditary trustees.
h) Suo motu O.A.No.24 of 1981 recognised "10" hereditary trustees.
i) The Joint Commissioner filed written statement in O.S.No.54 of 2007 on the file of Subordinate Judge, Sivakasi stating that there are "11" hereditary trustees and paragraph 7 of the written statement reads as follows:
VERNACULAR (TAMIL) PORTION DELETED
j) The proceedings dated 21.10.2008 of the Deputy Commissioner HR & CE, Sivakasi speaks about the "11" hereditary trustees.
1) VERNACULAR (TAMIL) PORTION DELETED 2) VERNACULAR (TAMIL) PORTION DELETED 3) VERNACULAR (TAMIL) PORTION DELETED 4) VERNACULAR (TAMIL) PORTION DELETED 5) VERNACULAR (TAMIL) PORTION DELETED 6) VERNACULAR (TAMIL) PORTION DELETED 7) VERNACULAR (TAMIL) PORTION DELETED 8) VERNACULAR (TAMIL) PORTION DELETED 9) VERNACULAR (TAMIL) PORTION DELETED 10) VERNACULAR (TAMIL) PORTION DELETED 11) VERNACULAR (TAMIL) PORTION DELETED
k) The election proceedings dated 29.10.2005 to elect the managing trustee would show that in the election conducted by the Joint Commissioner out of "10" hereditary trustees "7" trustees participated and S.A.Rajendran Poosari, S/o. Arunachala Poosari was elected as the Managing Trustee.
l) Writ petition Nos.9157 and 9159 of 2008 were allowed by this Court on 20.10.2008 speaks about existing "11" trustees who should be allowed to participate in the election either as candidates or as voters as the case may be.
45. The above proceedings and orders would reveal that the existing collegium of "11" hereditary-ship is in vogue right from 1957. The said position is admitted by both the parties through correlation statement between 1957 and 2010 regarding hereditary trustees filed by the writ petitioners and objections filed by the appellants. Though the S.Sethulingam Poosari, the sixth respondent and appellant in W.A.Nos.527 and 528 of 2010 admitted that there are "11" hereditary trustees in 1957 as well as in 2010, the appellant objected only with regard to inclusion of the seventh respondent S.A.Rajendran Poosari as the hereditary trustees. Objection by the sixth respondent to the genealogical list submitted by seventh respondent and the writ petitioner reads as follows:
" OBJECTIONS TO THE GEONEALOGICAL LIST SUBMITTED BY THE WRIT PETITIONER sl.No. List of trustees in 1957 Subsequent trustees Present trustees 1 M.Ramasami Poosari No issues
-------------2
R.Subbiah Poosari Ramakrishnan Poosari Soundararajan Poosari 3 S.R.Perumal Poosari P.Ramasamy Poosari Maharajan Poosari 4 S.R.Sakkarai @ Muthuraman Poosari
--------------
Ramamurthi 5 S.Ramasamy Poosari Seeni @ Sundarammal S.Marimuthu 6 S.Shanmugam Poosari Sangaralingam Poosari Ramar Poosari 7 S.Chokkalingam Poosari Sethulingam Poosari Sethulingam Poosari 8 S.V.Ramasamy Poosari V.R.Ramasamy Poosari Hariram Poosari 9 S.Subbiah Poosari Chellai @ Ramasamy Poosari R.Marimuthu Poosari (died) 10 S.Seenichami Poosari Kathiresan Poosari Kathiresan Poosari 11 S.Sangaiah Poosari S.Ramar Poosari S.Ramar Poosari *S.A.Rajendran Poosari * *S.A.Rajendran Poosari, who is claiming himself as a hereditary trustee had by illegal means started claiming office only from 1980 onwards his father Mr.Arunachalam Poosari himself had never succeeded as hereditary trustee. Neither S.A.Rajendran Poosari nor his father Arunachalam Poosari acted as hereditary trustee prior to 1980 and no list prior to 1980 would show the names of any of the above two."
46. However, it is seen that the seventh respondent (S.A.Rajendran Poosari) was the Chairman of the Board of Trustees for the period between 2005 and 2008 and he conducted the election on 23.10.2008 and therefore, at this point of time it cannot be said that S.A.Rajendran Poosari's name was fraudulently entered into as hereditary trustee. If really the appellants were aggrieved by S.A.Rajendran Poosari's appointment as Hereditary Trustee, they should have challenged the said appointment immediately thereafter. In this regard, the appellants are guilty of acquiescence. That apart the appellants did not file any counter to suo motu application making their stand clear.
47. It is seen that the names of the hereditary trustees are recorded through orders passed under Section 54(1) of the Act by the authorities. Moreover, "11" hereditary trustees have been functioning right from 1957 onwards as evident from various proceedings and records. Hence it is too late for the department to contend in its report that names of S.Ramasamy Poosari and SRM Ramamurthi Poosari and S.Ramakrishnan Poosari and S.Sangiah Poosari, S.Seeni Chamy Poosari and S.Arunachalam Poosari were inadvertently by mistake recorded as successor. The said explanation cannot be accepted. However, it is made clear that the findings/observations of this court that "11" hereditary trustees are functioning is based on the records produced before this court and also based on the categorical statement filed by the department in O.S.No.54 of 2007 filed by P.C.R. Chellaperumal Poosari on the file of the Sub-Court, Sivakasi seeking for declaration that all poosaries are hereditary trustees. Till the civil court adjudicates the issues involved in this case, this order will hold good regarding the number of trustees. That apart 11 hereditary trustees have been functioning and that cannot be disturbed now without proper adjudication by the Civil Court.
Mode of Succession
48. Section 6(11) defines hereditary trustee and the mode of succession is by 1) hereditary right, 2) regulated by usage and 3) specifically provided for by the founder. In this case the dispute is the mode of succession of hereditary trusteeship. Mr.R.Gandhi, learned Senior counsel appearing for the sixth respondent and appellant in W.A.Nos.527 and 528 of 2010 contended that there are "6" hereditary trustees which was admitted by the first and seventh respondents and the writ petitioners in paragraphs 5 and 6 of the affidavit and other proceedings. He further pleaded estoppel and resjudicata against the writ petitioners and contended that the Joint Commissioner rightly decided the hereditary trustees as "6". The eldest male member of the family succeeds to the hereditary trusteeship and therefore, there can not be "11" hereditary trustees as claimed by the writ petitioners. Similarly Mr.Chandrasekaran, learned counsel appearing for the Executive Officer of the temple submitted that there could only be "6" trustees.
49. However, Mr.R.Thiagarajan, learned Senior Counsel appearing for SK.Marimuthu Poosari, the appellant in W.A.Nos.576 and 577 of 2010 submitted that all the members are entitled to Hereditary Trusteeship. On the other hand, Mr.K.Alagirisamy, learned senior counsel appearing for the first respondent and the writ petitioners contended, by custom and usage the male members of the family were made hereditary trustees till 1977 and after the order made in RP.No.169 of 1975 dated 23.3.1997, the usage was regulated and the hereditary trusteeship was only restricted to the eldest male member of the family.
50. Mr.Sriram, learned counsel appearing for the 7th respondent in W.P.No.3517 of 2010 submitted that all the male members of the family are hereditary trustees and it recognised by custom and usage. The aforesaid various contentions of the parties would make it very clear that the mode of succession of trusteeship is a disputed fact. It is well settled law that the disputed facts cannot be adjudicated in writ jurisdiction under Article 226 of the Constitution of law. Moreover writ court cannot conduct roving enquiry.
51. Similarly the number of trustees are also in dispute. One group of parties plead that there is only "6" hereditary trustees. Whereas the other group contend that there are "11" hereditary trustees and yet another group contend that there are more than "11" trustees namely all male members of the family. This is also a disputed question of fact and the same cannot be decided by this court. As stated above, this court cannot adjudicate the disputed question of fact in the writ jurisdiction. The Hon'ble Apex Court in State of Uttar Pradesh vs. Uttar Pradesh Rajya Kanij Vikas Nizan S.S. Reported in 2008 (9) SCALE held that when disputed questions of fact come up for consideration, appropriate forum would not be a writ court but appropriate court which has jurisdiction to go into the controversy on the basis of evidence made by the parties. The exception is that if a disputed question can be determined on the basis of documents and/or affidavit, writ court may not ordinarily refuse to do so as held by the Apex Court in NTPC Ltd. vs. Mahesh Ditta reported in (2009) 8 SCC 399. Since, disputed questions of fact are involved in this case, the same cannot be decided on the basis of affidavit.
52. O.S.No.54 of 2007 on the file of the Sub Court, Sivakasi filed by PCR Chellaperumal Poosari against the tenth respondent S.Ramar Poosari and 47 others praying for declaration that the plaintiff therein and all other poosaries of the temple are hereditary trustees of the temple and that they can take part in the election of managing trustees and for other reliefs and the same is pending. This court gives liberty to the parties to raise all contentions including mode of succession and the number trustees before the Civil Court where the parties can adduce both oral and documentary evidence. All the issues are kept open and the Civil Court is at liberty to decide the matter on merits as per law untrammelled and uninfluenced by any of the observations made by this court.
53. W.P.No.4287 of 2010 is only for issuance of mandamus to consider the petitioner's representation, the petitioner sought for writ of Mandamus directing the first and second respondents to consider his representation dated 29.10.2009 seeking appointment as hereditary trustees of the temple considering the limited scope in the writ petition. Without expressing any opinion on the merits of his claim, the Commissioner and Joint Commissioner HR & CE, are directed to dispose of the petitioner's representation within 12 weeks from the date of the receipt of a copy of the order after affording the opportunity to the petitioner as well interested persons.
RELIEFS/DIRECTIONS
54. a) Order dated 8.1.2010 passed in Suo-motu O.A.No.4 of 2000 is quashed for violation of Rules, principles of natural justice and for lack of jurisdiction and W.P.(MD)Nos.3040 and 3517 of 2010 are allowed.
b) Since the issue of declaration regarding the status of Poosaries as hereditary trustees is pending adjudication in O.S.No.54 of 2007 on the file of Sub-Court, Sivakasi, the same is directed to be disposed of as per paragraph 52 of this court expeditiously by the Subordinate Judge, Sivakasi preferably within 6 months from the date of production of copy of this order.
c) Till the Civil Court decides the matter, the existing "11" hereditary trustees would remain. In other words status quo prior to passing of order in suo motu O.A.No.4 dated 9.3.2010 shall remain till O.S.No.54 of 2007 is decided.
d) If any vacancy arises in the meantime, the same shall be filled up by primogeniture as per order dated 23.5.1977 in R.P.No.169 of 1975, which continues to remain in force till date.
e) i) In fine Writ Appeals are dismissed.
ii) As per the order of the learned Single Judge, Mr.Sivaraman, Advocate Commissioner having office at No.38, High Court Law Chamber, Madurai-23 shall conduct the election with the existing collegium "11" Hereditary Trustees within one month from the date of the receipt of a copy of this order in the presence of RDO Virudhunagar.
iii) Proper police bandobust shall be provided by the police authorities if required by the Advocate Commissioner.
iv) After declaration of result, the authorities/concerned person shall hand over charge to the newly elected Chairman forthwith.
v) All the parties are directed to co-operate for smooth conduct of election.
f) W.P.No.4287 of 2010 is ordered.
g) This Court reiterates that the directions contained in this order shall prevail and no interim or final order conflicting with this order except to the extent as to what is stated regarding the disposal of O.S.No.54 of 2007 shall be passed.
55. In the result Writ appeals are dismissed. Consequently the connected M.P.Nos.1 and 2 of 2010 are also dismissed. No costs. W.P.(MD)Nos.3040,3517 and 4287 of 2010 are allowed. No costs. Consequently connected M.P.Nos.2 and 3 of 2010 in W.P.(MD)Nos.3040 and 3517 of 2010 are closed. M.P.No.1 of 2010 in W.P.No.4287 of 2010 is closed. No costs.
vk To:
1.The Secretary to Government, Hindu Religious & Charitable Endowments Department, Fort St. George, Chennai-9.
2.The Commissioner, Hindu Religious & Charitable Endowments Department, Nungambakkam, Chennai-34.
3.The Joint Commissioner, Hindu Religious & Charitable Endowments Department, Sivagangai.
4.The Executive Officer, Arulmighu Mariamman Thirukkoil, Irukkangudi, Sattur Taluk, Virudhunagar District