P.S. Kailasam, J.
1. These two petitions are filed by the petitioner, who is the hereditary trustee of the two temples for the issue of writ of mandamus directing the Commissioner, Hindu Religious and Charitable Endowments, Madras, to forbear from making any appointment of non-hereditary trustee for the two temples except in accordance with the provisions of Section 47(2) of the Hindu Religious Endowments Act, 1959.
2. In l933 the Board of Commissioners for Hindu Religious Endowments filed the suit, O.S. No. 7 of 1933 in the Court of the District Judge of East Thanjavur, Nagapattinam, for modifying the schemes already framed in respect of the suit temples against the petitioner's father and three others on the ground that they were mismanaging the temples. A decree was passed in that suit on 23rd April, 1935 framing a revised scheme. The scheme provided for the appointment of a Board of three trustees, one being the father of the petitioner as the hereditary trustee and two other trustees who were to be non-hereditary trustees. Subsequently the Hindu Religious and Charitable Endowments Act of 1951 was passed repealing the 1926 Act. But the new Act provided that all the schemes settled under the 1922 Act shall be deemed to have been settled under the corresponding provisions of the Act. Thus the scheme framed in the suit was deemed to have been settled under the 1951 Act. Subsequently the 1959 Act was passed and it also provided that the schemes that were deemed to have been settled under the Act of 1951 shall be deemed to have been settled under the corresponding provisions of the 1959 Act.
3. After the 1959 Act came into force on 9th September, 1960 the Commissioner, Hindu Religious and Charitable Endowments appointed one Radhakrishna Naidu as the trustee for a period of 5 years in pursuance of the scheme, read with Section 47 of Act XXII of 1959. On 6th October, 1960 another non-hereditary trustee was appointed under the same provisions. On 29th June, 1965 the Assistant Commissioner issued a notice calling for applications for appointment as non-hereditary trustees for the two temples. This notification is challenged as being contrary to the provisions of Section 47(2) of the Act and therefore illegal.
4. According to the scheme that was framed in the suit, O.S. No. 7 of 1933 it was provided that there should be three trustees, one hereditary trustee and two non-hereditary trustees. Section 118(2)(b) of the Act provides that if any provision contained in any scheme settled or deemed to have been settled under the Madras Hindu Religious Endowments Act, 1926, including a scheme settled under Section 92 of the Code of Civil Procedure, and in force immediately before the 30th September, 1951 is repugnant to any provision contained in this Act or the rules made thereunder the latter provision shall prevail and the former provision shall to the extent of repugnancy be void. As a result of this provision if any clause or provision in the scheme framed in the suit is repugnant to the provisions of Act XXII of 1959 or the rules made thereunder those provisions shall be void. The provision which is stated to be repugnant to the scheme in the suit providing for appointment of a hereditary trustee and two non-hereditary trustees is Section 47(2) of the Act. Section 47(2) provides that where in the case of any institution included in the list published under Section 46 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. According to this sub-section in an institution having a hereditary trustee if the Commissioner after notice to the trustees and after such enquiry as he deems adequate considers that the affairs of the temple are not properly managed by the hereditary trustee he may appoint non-hereditary trustees. Before taking action under this section it is incumbent on the Commissioner to give notice to the trustee and conduct such enquiry as the Commissioner deems adequate. It is admitted that no notice had yet been given to the hereditary trustee and therefore if this sub-section is applicable non-hereditary trustees cannot be appointed in pursuance of the notice dated 29th June, 1965. The question that has to be considered is whether this sub-section is applicable to the appointment of non-hereditary trustees for the first time after the Act came into force or whether it is applicable to all institutions having hereditary trustees to which the vacancies in the office of non-hereditary trustees are to be filled up. In this connection reference may be made to Sub-section (5) which provides that where a vacancy arises in the office of a non-hereditary trustee appointed under Sub-section (2) the Commissioner shall not fill-up such vacancy unless for reasons to be recorded, he considers it necessary to do so. A non-hereditary trustee appointed in the vacancy shall be deemed to have been appointed under Sub-section (2), and the provisions of sub-sections (3) and (4) Shall apply accordingly. This sub-section makes it clear that if there is a vacancy in the office of non-hereditary trustee appointed under Sub-section (2) to Section 47, the Commissioner may fill up the vacancy if he considers necessary to do so. But the procedure in Sub-section (5) does not appear to include filling up of vacancies in the office of non-hereditary trustees appointed otherwise than under Sub-section (2).
5. Section 47(2) prescribes the procedure that has to be adopted in the case of institutions having hereditary trustees when the Commissioner wants to appoint non-hereditary trustees. It is silent as to institutions having hereditary trustees to which non-hereditary trustees have already been appointed under the old Act or under any scheme framed. As Section 47(2) is confined to the appointment of non-hereditary trustees after the Act comes into force, it cannot be said that there is any repugnancy. Therefore Section 118(2)(b) cannot be invoked by the petitioner for contending that the clauses of the scheme providing for the appointment of one hereditary trustee and two non-hereditary trustees are repugnant to Section 47(2).
6. The clause providing for the appointment of the non-hereditary truseee and the provisions of Section 47(2) can stand side by side. Therefore the question of repugnancy does not arise. As the appointment to the two institutions in question are not governed by Section 47(2), the notification cannot be said to be beyond the powers of the Commissioner.
7. Mr. Ramamurthi Iyer, learned Counsel for the petitioner referred to the decision of a Bench of this Court in S.D.G. Pandarasannadhi v. State of Madras : (1962)2MLJ67 , and the decision of the Supreme Court in S.D.G. Pandarasannadhi v. State of Madras (1965) 2 S.C.J. 711 : (1965) 2 M.L.J.167 : (1965) 2 A.W.R. (167. The decisions relate to Section 64(4) of the Madras Hindu Religious and Charitable Endowments Act of 1951 which provided that every notification under the section shall remain in force for a period of five years but it may by notification be cancelled at any time or continued from time to time for a further period or periods not exceeding five years at a time the Government may by notification deem fit to direct.
8. The Supreme Court held that while acting under Section 64(4) the Government has to consider whether a case has been made out for cancellation of the notification or for extending it and on each occasion where a decision has to be taken under Section 64(4) the process of reaching the decision is exactly similar to the process in reaching a decision under Section 64(3). The Court further observed that all relevant facts in regard to the management of the endowment must be taken into account, and the question to be considered on each occasion would be whether or not supervision by the Executive Officer under notification is required in the interests of public good. Mr. Ramamurthi Iyer submitted that the appointment of non-hereditary trustees to an institution in which there are hereditary trustees would substantially curtail the rights of the hereditary trustees and therefore before the Commissioner deems it necessary to appoint non-hereditary trustee he would have to proceed under Section 47(2) by giving notice to the trustee and after making adequate enquiries. I am unable to accept this contention. Being the scheme framed in the suit which is deemed to be continued now, the new Act should govern the management of the institution. The scheme shall become void only to the extent to which it is repugnant to the provisions of the Act and the rules made thereunder. Section 47(2) is clear in that its operation is restricted, only to institutions having hereditary trustees to which it becomes necessary to appoint non-hereditary trustees after the doming into force of this Act. In the result I am unable to accept the contentions of the learned Counsel for the petitioner.
9. These petitions are dismissed. No order as to costs.