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V.D. Kothandapani Mudaliar Vs. the Area Committee, H.R. and C.E. for Madras City and Chingleput District, by Its President, Assistant Commissioner, H.R. and C.E. and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtChennai High Court
Decided On
Reported in(1960)1MLJ176
AppellantV.D. Kothandapani Mudaliar
RespondentThe Area Committee, H.R. and C.E. for Madras City and Chingleput District, by Its President, Assista
Excerpt:
- - 4. in this case it would be seen that a notice was issued to the petitioner as the hereditary trustee of this institution before action was taken for the appointment of the non-hereditary trustees and so the first condition was satisfied. the complaint, however, of the petitioner was that there was a failure on the part of the area committee to conform to the statute in respect of the other two matters :(1) that there was no inquiry held into the matters set out in his explanation to what amounted practically to charges of mismanagement against him, and (2) that the order actually passed making the appointments did not contain the record of any reasons, which was a statutory pre-requisite of a valid order......of the temple. the petitioner showed cause and submitted his explanation. thereafter the area committee passed on 26th august, 1957, a resolution appointing respondents 2 and 3 as the non-hereditary trustees of this institution. it is the validity of this resolution and this order of appointment of non-hereditary trustees that is challenged in this petition.2. to appreciate the contention urged on behalf of the petitioner, it is necessary to advert to the relevant statutory provision bearing upon the appointment of non-hereditary trustees by area committee. section 41(1) of madras act (xix of 1951) enacts, (to quote only the relevant portion):41. (1) in the case of any religious institution over which an area committee has jurisdiction, the area committee shall have the same.....
Judgment:
ORDER

Rajagopala Ayyangar, J.

1. The order impugned in this petition for the issue of a writ of certiorari is that of the Area Committee, Madras City and Chingleput District. The temple in question is the Elavapuriswarar temple situated at Vilangadupakkam village in Saidapet Taluk. The petitioner was hereditary trustee of this temple. It is stated that complaints were received about the maladministration of the temple and its affairs by the petitioner, and a notice was issued to him on 5th August, 1957, by which the petitioner was called on to show cause why non-hereditary trustees should not be appointed for the proper management of the temple. The petitioner showed cause and submitted his explanation. Thereafter the Area Committee passed on 26th August, 1957, a resolution appointing respondents 2 and 3 as the non-hereditary trustees of this institution. It is the validity of this resolution and this order of appointment of non-hereditary trustees that is challenged in this petition.

2. To appreciate the contention urged on behalf of the petitioner, it is necessary to advert to the relevant statutory provision bearing upon the appointment of non-hereditary trustees by Area Committee. Section 41(1) of Madras Act (XIX of 1951) enacts, (to quote only the relevant portion):

41. (1) In the case of any religious institution over which an Area Committee has jurisdiction, the Area Committee shall have the same power to appoint trustees as is vested in the Commissioner in the case of a religious institution referred to in Section 39.

The relevant portion of Section 39 to which reference is made herein is Section 39(2) which runs:

(2) Where, in the case of any such institution having a hereditary trustee or trustees, the Commissioner, after notice to such trustee or trustees and after such inquiry as he deems adequate, considers for reasons to be recorded, that the affairs of the institution are not, and are not likely to be, properly managed by the hereditary trustee or trustees, the Commissioner may, by order, appoint such number of non-hereditary trustees as he thinks necessary, so however that the total number of trustees does not exceed five.

3. The combined effect of these two Sections 39(2) and 41(1), would be that where there is a hereditary trustee, the statute requires : (1) that notice should be given to such trustee before any step is taken; (2) that such enquiry as the Commissioner or the Area Committee as the case may be deems or deem adequate should be held before non-hereditary trustees are appointed; (3) that reasons should be recorded for the appointment to be made and (4) that the reason should be that the affairs of the institution are not, and are not likely to, be properly managed by the hereditary trustee or trustees.

4. In this case it would be seen that a notice was issued to the petitioner as the hereditary trustee of this institution before action was taken for the appointment of the non-hereditary trustees and so the first condition was satisfied. The complaint, however, of the petitioner was that there was a failure on the part of the Area Committee to conform to the statute in respect of the other two matters : (1) that there was no inquiry held into the matters set out in his explanation to what amounted practically to charges of mismanagement against him, and (2) that the order actually passed making the appointments did not contain the record of any reasons, which was a statutory pre-requisite of a valid order.

5. I shall take these two objections in that order. First as to the enquiry; I called for the minutes book of the Area Committee for having the point cleared. The meeting of the Area Committee at which the resolution now impugned was passed was held on 26th August, 1957, the previous meeting having been on 25th July, 1957. The notice of the Assistant Commissioner to the petitioner was to show cause why non-hereditary trustees should not be appointed in view of certain items of mismanagement set out in his memorandum, dated 5th July, 1957. The reply of the petitioner together with the explanation was submitted on 14th August, 1957 and the resolution for the appointment was as already stated, passed on 26th August, 1957 and it was item No. 7 on the agenda of the meeting on that date. The office file of the Assistant Commissioner shows that on 17th August, 1957, he had as the Assistant Commissioner passed an order stating that the explanation of the hereditary trustee was not satisfactory and made a decision that respondents 2 and 3, might be appointed non-hereditary trustees. On the same day he made a note in the file approving the agenda for the meeting. The agenda merely ran

Trustees - Sri Elavapuriswarar Temple, Vilangadupakkam village, Saidapet Taluk, Chingleput District - Appointment - Consideration of,

and on 26th August, 1957, respondents 2 and 3 were appointed as non-hereditary trustees. In the face of this state of the file and of the minutes book, one is at a loss to understand as to (when the Area Committee considered whether an inquiry was needed or what sort of inquiry was adequate in terms of Section 39(2) which is made applicable to the Area Committee under Section 41(1). If the Area Committee had before it the explanation and after considering the explanation felt that on the matters set out in the charge and in the explanation no inquiry was needed, that would raise a different question for consideration. That is not, however, what happended in the present case. The only person who appears from the files to have considered the explanation of the petitioner was the Assistant Commissioner. Certainly he was not the Area Committee though from the files, read with the minutes book it looks as if the Assistant Commissioner was constituted the Area Committee. I therefore hold that the statutory requirement that the Area Committee should consider this question as to the need for an inquiry and the extent or manner has not taken place in the present case. It is therefore not surprising, that no reasons were recorded for the resolution by the Area Committee because they had none themselves. The Assistant Commissioner evidently might have had some reasons but that is not the same thing as the requirement that the Area Committee should for reasons to be recorded consider the appointment necessary.

6. I hold therefore that there has been a violation of the statutory conditions, subject to which alone an appointment of a non-hereditary trustee might be made to the prejudice of a hereditary trustee, and in the circumstances the order of appointment of respondents 2 and 3 to the office of the trustee cannot stand. The petition succeeds and the rule nisi is made absolute. The order of the Assistant Commissioner and the resolution of the Area Committee is set aside. There will be no order as to costs.


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