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B.R. Venkatachalapathi Vs. the Commissioner, H.R. and C.E. (Admn.) Department and ors. - Court Judgment

LegalCrystal Citation
SubjectTrust and societies
CourtChennai High Court
Decided On
Reported in(1969)1MLJ437
AppellantB.R. Venkatachalapathi
RespondentThe Commissioner, H.R. and C.E. (Admn.) Department and ors.
Excerpt:
- .....of sangameswaraswami temple, bhavani town for a period of five years in the year 1964 by the area committee. subsequently the temple was notified under section 46 of the madras hindu religious and charitable endowments act, 1959 as a listed temple. applications were invited for appointment of trustees in pursuance of the notification under section 46 of the act by the commissioner in the exercise of his powers under section 47. the petitioner and others applied for being appointed as trustees. the commissioner by his proceedings dated 16th november, 1968 appointed five persons as trustees, one of whom was chinnappa gounder, but the petitioner was not appointed. chinnappa gounder, who was appointed as a trustee, intimated his inability to function as a trustee, in person to the.....
Judgment:
ORDER

P.S. Kailasam, J.

1. The petitioner who is an unsuccessful applicant for the post of a trustee of Sangameswaraswami Temple, Bhavani town, prays for the issue of a writ of certiorari calling for the records of the Commissioner, Hindu Religious and Charitable Endowments, Madras relating to the proceedings in D.D. No. 47216/68 dated 16th November, 1968 and R.C. No. 48057/68/A-l dated 21st November, 1968 and to quash the orders appointing respondents 2 to 6 as trustees.

2. The petitioner was appointed as one of the five trustees of Sangameswaraswami temple, Bhavani town for a period of five years in the year 1964 by the Area Committee. Subsequently the temple was notified under Section 46 of the Madras Hindu Religious and Charitable Endowments Act, 1959 as a listed temple. Applications were invited for appointment of trustees in pursuance of the notification under Section 46 of the Act by the Commissioner in the exercise of his powers under Section 47. The petitioner and others applied for being appointed as trustees. The Commissioner by his proceedings dated 16th November, 1968 appointed five persons as trustees, one of whom was Chinnappa Gounder, but the petitioner was not appointed. Chinnappa Gounder, who was appointed as a trustee, intimated his inability to function as a trustee, in person to the Commissioner of Hindu Religious and Charitable Endowments on 21st November, 1968, and on the same day the Commissioner appointed T. K. Ramaswami Gounder, the 6th respondent in the vacancy caused by the resignation of Chinnappa Gounder.

3. The petitioner challenges the orders of the Commissioner dated 16th November, 1968 and 21st November, 1968. The attack on the order dated 16th November, 1968 is on the ground that, when the petitioner had been validly appointed by the Area Committee for a period of five years, he could not be removed till the expiry of that period. Regarding the order dated 21st November, 1968, it is submitted that the Commissioner was in error in appointing the 6th respondent without following the procedure in filling up a casual vacancy and considering the merits and demerits of persons available for the appointment.

4. The petitioner was appointed as a trustee by the Area Committee under Section 46 of the Act on 28th March, 1964 for a period of five years. This period would normally expire on 27th March, 1969. But in the meantime on 17th July, 1967 the temple was listed and applications for appointment of fresh trustees were called for by the Commissioner, and the appointment of fresh trustees was made on 16th November, 1968. Section 49 of the Act provides that the provisions of Sub-section (3) of Section 47 shall apply to the trustee or trustees appointed by the Area Committee, as they apply to the trustee or trustees appointed by the Commissioner. Section 47(3) provides that every non-hereditary trustee appointed shall hold office for a term of five years, unless in the meanwhile the trustee is removed or dismissed or his resignation is accepted by the Commissioner or he otherwise ceases to be a trustee. As the provisions of Sub-section (3) of Section 47 are applicable to the trustees appointed by the Area Committee as provided under Section 49 (2) of the Act, the submission of the learned Counsel for the petitioner is that the appointment by the Area Committee would be valid for a period of five years, unless in the meanwhile the trustee is removed or dismissed or his resignation is accepted by the Commissioner or he otherwise ceases to be a trustee. Admittedly, the petitioner has not been removed or dismissed or his resignation accepted. It was contended that he would not fall under the term ' otherwise ceases to be a trustee ' for that would be applicable only to cases where the trustee is disqualified under Section 26 (6) of the Act. The term ' otherwise ceases to be a trustee ' should be given its plain and natural meaning. A trustee may cease to be a trustee due to various reasons, either by becoming disqualified or by operation of law. It cannot be given a restricted meaning as contended by the learned Counsel for the petitioner that a trustee ceases to be a trustee only by being disqualified under any of the clauses in Section 26 of the Act. Section 46 of the Act provides that the Commissioner shall publish a list of the religious institutions whose annual income calculated for the purposes of the levy of contribution under Section 92 is not less than twenty thousand rupees. When such a notification is made, Section 47 becomes applicable. Section 47 provides that where a religious institution included in the list published under Section 46 has no hereditary trustee, the Commissioner shall constitute a Board of Trustees. There is no provision in Sections 46,47 or 49 which saves the term of the trustee appointed by the Area Committee, even when the temple is listed under Section 46. Reading Sections 46 and 47 together, it is clear that, when once a temple is listed, the Commissioner is required to constitute a Board of Trustees and there is no provision for continuing the trustees appointed by the Area Committee, unless the trustee is appointed by the Commissioner afresh. Further, the appointment under Section 49 by the Area Committee is only for a non-listed temple, that is a temple for which the Area Committee could make the appointment. When the temple ceases to be one within the jurisdiction of the Area Committee and becomes a listed temple, it is taken out of the jurisdiction of the Area Committee, and the appointment of trustees can only be under Section 47. Considering the relevant sections, I am satisfied that the plea of the petitioner that when once a trustee is appointed by the Area Committee, he is entitled to be in the office for the full term, in spite of the fact that the temple is listed in the meanwhile has to be rejected.

5. It was submitted that a special provision is made under Section 47 by the amending Act XIX of 1968, wherein a proviso is added to continue the trustee appointed. I do not think that reference to any subsequent amendment would help in deciding the question at issue. In the result this contention will have to be rejected.

6. It was next contended by the learned Counsel for the petitioner that under Section 15 (1) (a) the Area Committee is the authority to appoint trustees for the temple within its jurisdiction. The sub-section will only have to be read to reject this contention, for the sub-section excepts the temples included in the list published under Section 46 of the Act. The Commissioner, shall therefore have to call for applications for filling up the post of trustees in the listed temples coming within his jurisdiction and the trustees, who are functioning on being appointed by the Area Committee cannot to be trustees, unless they are appointed afresh by the Commissioner.

7. It was next contended by the learned Counsel for the petitioner that in any event the order of the Commissioner dated 21st November, 1968 cannot be sustained, as the procedure for filling up a causal vacancy was not followed. It may be remembered that Chinnappa Gounder resigned on 21st November, 1968 by presenting a letter in person to the Commissioner and immediately the Commissioner appointed the 6th respondent as a trustee in the place of Chinnappa Gounder. After the temple was listed applications for appointment of fresh trustees were called for and about 13 persons applied. A report about these 13 applicants was submitted by the Assistant Commissioner and the Deputy Commissioner, to the Commissioner. Amongst the 13 applicants the Commissioner appointed five persons. The appointment takes effect from the date of appointment and does not depend upon the applicants accepting it or not, for the acceptance is presumed as the applications are considered after the persons apply for the post. When T. K. Chinnappa Goundar who was appointed a trustee, intimated his inability to discharge the functions of a trustee, a casual vacancy arose. When a casual vacancy arises, the usual procedure is to notify the vacancy, call for applications and on the report of the authorities for the Commissioner to appoint the trustee. In this case the plea on behalf of the Commissioner is that he had the report regarding the 13 applicants for the five posts, and he selected one among the remaining applicants. But this is not the usual procedure for filling up a casual vacancy, for between the date on which the applications were invited originally and the date of falling of the casual vacancy, there may be other persons interested in applying for the posts and there is no justification for not filling up the casual vacancy in the usual manner after calling for the applications. Apart from this objection, the learned Counsel for the petitioner submitted that, if only the Commissioner had looked into the records, he would have found that the 6th respondent was not a person fit to be appointed as a trustee. He listed several acts of the 6th respondent, which, according to him would disqualify the 6th respondent from being appointed as a Trustee. He instanced the fact that the 6th respondent on certain occasions opened the hundi of a temple, of which he is the trustee, without notifying the concerned authorities and also the fact that certain lands were leased by him without a public auction being held. He also alleged that the 6th respondent was reported to be guilty of improper conduct towards the family of the temple staff. All these allegations are vehemently denied by the learned Counsel for the 6th respondent. Whether the 6th respondent is guilty of any acts which would render him not a fit person to be appointed as a trustee or whether these allegations were made by parties who are inimically disposed towards the 6th respondent cannot be gone into in this petition. But it is incumbent on the Commissioner in making the appointment to consider the comparative merits of the persons who are eligible for appointment as trustees and make the appointment. There is no indication that the Commissioner considered either any of the qualifications or the disqualifications of applicants, who were included in the list that was before him. The order of appointment of the 6th respondent as a trustee is in the nature of a quasi-judicial function and it is incumbent on the Commissioner to give reasons for such an appointment. The order of the Commissioner which states ' I hereby appoint T. K. Ramaswami Goundar as trustee from the date of this order' does not at all throw any light regarding the consideration of the comparative merits of the applicants. On these grounds the order of the Commissioner dated 21st November, 1968 appointing the 6th respondent as a trustee will have to be set aside. The Commissioner will consider the vacancy caused by the resignation of Chinnappa Goundar as a casual vacancy, call for applications and proceed to make the appointment according to law.

8. In the result this writ petition is dismissed regarding the prayer for quashing the order of the Commissioner dated 16th November, 1968 and allowed so far as the Commissioner's order dated 21st November, 1968 is concerned.

9. No order as to costs.


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