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S.V. Ramaswamy Poosari and anr. Vs. the Deputy Commissioner, Hindu Religious and Charitable Endowments and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and societies
CourtChennai High Court
Decided On
Reported in(1973)1MLJ320
AppellantS.V. Ramaswamy Poosari and anr.
RespondentThe Deputy Commissioner, Hindu Religious and Charitable Endowments and ors.
Excerpt:
- .....are that the summary disposal of the petition or complaint made by the 'surviving' trustees in the board of hereditary trustees of the temple, is not proper and is against the provisions of the act. they would state that their petition in any event, should not have been lodged and the order to the effect that the petitioners' representations need no interference, is one passed by the commissioner without jurisdiction. on the other hand, the contesting respondents who claim that they are still hereditary trustees and that they do constitute members of the board of hereditary trustees, through counsel say that the order of the commissioner is perfectly right and within the compass of the meaning of section 26 (6) and no case has been made out to remove the said order under article 226 of.....
Judgment:
ORDER

T. Ramaprasada Rao, J.

1. The petitioners addressed a letter to the Commissioner Hindu Religious and Charitable Endowments, complaining that the 7 respondents who have been impleaded as parties to this writ petition are disqualified to be hereditary trustees of the Mariamman Temple, Irukkankudi, Sattur Taluk, on the only ground that they did not attend three consecutive meetings of the Trust Board. Having made such allegations against their co-hereditary trustees they went further and requested the Commissioner to treat the second petitioner and two others as the only surviving body of hereditary trustees for being recognised and dealt with even in the matter of election of the Chairman of such a Board. The first petitioner says that his right of hereditary trusteeship held by him has since been relinquished in favour of the second petitioner. This process of relinquishment is seriously deputed by the contesting respondents in this case. To continue the narrative after having so informed the Commissioner, the petitioners were expecting a date for the election of the Chairman amongst the second petitioner and two others. The Commissioner on 19th October, 1972, passed the impugned order which inter alia says this:

The disqualification's mentioned in Section 26 (6) of the Tamil Nadu Hindu Religious and Charitable Endowments Act do not apply to hereditary trustees. There is therefore, no case for interference. The petitioners are informed that their petition has been lodged.

The Commissioner, apparently has taken the view that Section 26 (6) does not apply to hereditary trustees at all. He did not stop there. He concluded that there was no case for interference as well and finally stated that the complaint of the petitioners has been lodged which, of course, means that it is not going to be enquired into under any of the provisions of the Tamil Nadu. Hindu Religious and Charitable Endowments Act, hereinafter called the Act. Aggrieved by this order, the petitioners have come up to this Court and are seeking for a writ of mandamus in Writ Petition No. 2723 of 1972 compelling the respondents to deal with their letter, dated 28th September, 197 in a manner known to law and having found that soon after they filed the above writ petition the Commissioner has passed the order, dated 19th October, 1972, the petitioners have filed Writ Petition No. 2877 of 1972, to quash the said order. The contentions of the learned Counsel for the petitioners are that the summary disposal of the petition or complaint made by the 'surviving' trustees in the Board of hereditary trustees of the temple, is not proper and is against the provisions of the Act. They would state that their petition in any event, should not have been lodged and the order to the effect that the petitioners' representations need no interference, is one passed by the Commissioner without jurisdiction. On the other hand, the contesting respondents who claim that they are still hereditary trustees and that they do constitute members of the Board of hereditary trustees, through Counsel say that the order of the Commissioner is perfectly right and within the compass of the meaning of Section 26 (6) and no case has been made out to remove the said order under Article 226 of the Constitution.

2. I may immediately dismiss the Writ Petition No. 2723 of 1972 because that was filed at a time when the Commissioner had not disposed of the main complaint made by the petitioners, at any rate as seen from their petition, dated 28th September, 1972. The writ petition was filed on 18th October, 1972. The Commissioner passed his order which I have already excerpted in part, on 19th October, 1972, and, therefore, the writ of mandamus sought for could no longer be issued. This writ petition (W.P. No. 2723 of 1972) is there fore, dismissed.

3. In so far as the second writ petition for the issue of a writ of certiorari is concerned, it is necessary to refer to the relevant sections of the Act for a proper understanding of the contentions of parties. Section 6 (II) defines a hereditary trustee as meaning a trustee of a religious institution. Section 6 (14) says that a non-hereditary trustee means a trustee who is not a hereditary trustee. Section 6 (22) defines a trustee as meaning any person or body by whatever designation known in whom or in which the administration of a religious institution is vested, and includes any person or body.... These provisions, therefore, make it clear that the 'tru tee' would also include a he editary trustee if in the circumstances, he is a trustee who is administering a religious institution. In the instant case, therefore, the first petitioner and the 7 respondents who have been impleaded and the two others are, undoubtedly, trustees who come within the grip of the various provisions of the Act. I have omitted the second petitioner for the reason that there is a controversy whether he has to be recognised as a hereditary trustse or not.

4. Section 26 deals with disqualifications of trustees. This section whenever it is absolutely necessary to do so, refers specifically to hereditary trustees as well. Such provisions are Section 26 (1) (b) and 26 (4). Under Section 26 (4) if a hereditary trustee becomes subject to any of the disqualifications mentioned in Sub-section (1) of Section 26, the Deputy Commissioner has the power to supersede the trustee. Of course, under Sub-section (5) of Section 26, the person affected by such an order may appeal to the Commissioner. Under Sub-clause (6) of Section 26, the trustee of a religious institution for which a Board of Trustees has been constituted shall cease to hold office if he absents himself from three consecutive meetings of such a Board of Trustees within a period of two months. The proviso to that Section 26 is also important and may be extracted:

Provided that when a person who has ceased to be a trustee by reason of such absence applies for restoration within one month from the date of the last of the three meetings, the Board of Trustees may at the meeting next after the receipt of such application, restore him to his office of trustee ; but a trustee shall not be so restored more than once during his term of office.

The next question which is relevant for our consideration is Section 47 which refers to the trustee and their number and term of office. Section 47 (2) refers to an institution included in the list published under Section 46 (this temple is one) having a hereditary trustee or trustees. If the Commissioner, after notice to such trustee or trustees and after such enquiry as he deems adequate, is satisfied that the affairs are not properly managed, then, he may appoint non-hereditary trustees as well. I have only referred to this section to show that even in a case where an institution is piloted by hereditary trustees, the Commissioner has powers of interference. Under Section 48 (2) the mode of election of Chairman, if not elected by the trustees themselves, is also prescribed. In fact, the rules framed under Sections 47, 48 and 49 relating to the qualifications and functions of the Board of Trustees also would apply to an institution which has hereditary trustees on its Board. The next relevant section is Section 53 (1) defining the Commissioner as the appropriate authority, in the case of a listed temple. Section 53 (2) (k) enables the proper authority to suspend, remove or dismiss any trustee of a religious institution if he absents himself from three consecutive meetings of the Board of Trustees. Sub-clause 4 of Section 53 enables the proper authority to suspend such a trustee against whom certain charges are levelled, pending enquiry and disposal of such charges against him.

5. With this background, we have to consider whether the order passed by the Commissioner has to be removed. Section 26 (4) of the Act expressly vests in the Deputy Commissioner the power to supersede the Board of Trustees, even hereditary trustees, if they suffer from any disqualifications, I have already expressed the view that the trustee, having regard to the scheme of the Act, includes a hereditary trustee. Therefore, it follows that there are under this Act, specific provisions which would enable such of the authorities, constituted in the Act itself, to interfere in the administrate on of temples headed by hereditary trustees as well. That this is the impression gained by a general reading of the sections of the Act is clear from a decision of this Court made earlier in Writ Petition No. 4222 of 1970, which was confirmed in Writ Appeal No. 593 or 1971. In that case, the vary same petition are came forward with an application for the issue of a writ of certiorari to quash, the order of the Commissioner who directed the election of the Chairman in a special meeting to be convened of all the-trustees in respect of the temple. The question raised there was that the Commissioner did not have the power to do so. But this Court said that Section 48 (2) of the Act apples to the relevant institution in question and the appellate Court add : d that all the rules stated, including rub 18 of the functions of the Board of Trustees, would apply to the situation. The leaned Chief justice while applying Rule 18 (2) to the instant temple and its conduct of business, ha? observed that the power to make Rule 18, could well be justified and not only refers to Section 48 (2) but also to Clause 8 of Sub-section 2 of Section 116 which is 'the convening of the meetings of trustees and the quorum for and the conduct of business at such meetings'. In that context, the leaned Chief Justice held that it was open to the Commissioner, acting under Rule 18, to give direction to the Board of Trustees to convene a meeting and elect a Chairman. I have referred to these rules at length Only for the purpose of reiterating that the Commissioner or any other appropriate authority constituted under the Act, has the power of superintendence over the conduct of meetings to be held by the Board of hereditary trustees.

6. The question, therefore, is whether a complaint that one amongst such trustee) who, according to the complaint-ant has absented himself from three consecutive meetings of such a Board, automatically, ceases to hold office on the basis of that complaint or whether any investigation could be undertaken by the appropriate authority under Section 53 into such a complaint so as to ultimately find such cessation in the defaulting trustee.

7. The position is very clear. On a fair reading of Section 26 (6) if a trustee, or a Board of hereditary trustees, is accused of having absented himself on three consecutive meetings and if the accused or the delinquent trustee does not challenge this as a fact, then such a trustee has only one option left to him. He has to apply to the vary Board of Trustees within a month from the date of the last of the three meetings and it is for the Board to consider his application and restore him to his office as trustee. But, in cases like the one which has arisen in this case wherein the accused trustee categorically denies that there was no such absence from three meetings of such Board of Trustees, or the Board did not meet at all, or he did not have any notice of such meetings of the Board, then, the question arise; as to how and as to by whom such a problem has to be solved. When the occasion arose for the Commissioner, in the instant case, to solve it, he disposed of the same by saying that the disqualifications mentioned in Section 26 (6) of the Act, will not apply to the hereditary trustees. 1 am unable to agree that such a disqualification which is enumerated in Sub-clause (6) of Section 26 is applicable only to Boards constituted by the Commissioner or the Deputy Commissioner or the Assistant Commissioner as the case may be, under the Act, and not to a Board of hereditary trustees- Mr. Krishnamurthy, is emphatic that Clause (6) of Section 26 would only apply to such Boards constituted under the Act but would not apply to a Board of hereditary trustees constituted under a scheme framed by a civil Court or otherwise. There is no warrant for this argument, either in the context of Sub-clause (6) of Section 26 or by any other provisions of the Act as a whole. Of course, certain sections such as Section 47, speaks of a Board of Trustees constituted under the Act. But this does not mean that the Board of Trustees referred to in Sub-clause (6) of Section 26 can only be understood as a Board of Trusses constituted under the Act and not by a schema framed by a civil Court or to a Board of hereditary trustees as it is popularly understood. The mere fact that one or more trustees can come into the picture as hereditary trustees, making them a Board of Trustees, does not mean an enunciation or acceptance of such a body by the appropriate authority under Section 53 of the Act as Board of Trustees. It is neither necessary nor is it compulsory under the Act, for the statutory functionaries to accept and refer to such a body of hereditary trustees as a Board for any particular or general purpose under the Act. So long as the expression 'a trustee' includes a hereditary trustee is not in dispute and indeed, is indisputable, I am of the view that the Board of the Trustees under Section 26 would certainly take into its compass hereditary trustees as well and the appropriate authority under the Act can deal with it as such.

8. If the expression 'appropriate authority, is thus understood, then, the argument of Mr. Parasaran that if such a complaint is made against one or more of the members of such a Board that they have suffered the disqualifications mentioned in Sub-section (1)of Section 26, it is the duty of the Commissioner to enquire into it under Section 53 (1) (k) as the duly constituted authority under the Act has great force. The Commissioner in the instant case as the duly constituted authority has jurisdiction to enquire into the dispute of the temple in question. I am of the view that in such a contingency as in the instant case, where the presence or absence of trustees from three consecutive meetings of such a Board is in dispute then, certainly, one has to find the machinery within the four corners of the Act itself which machinery has to be ret in motion to find whether the complaint is justified or not. Section 26(4) as I have already staged, enables the Deputy Commissioner to supersede a hereditary trustee if such a trustee suffers from any of the enumarated disqualifications under Section 26 (6). If the Deputy Commissioner supersedes such a hereditary trustee then it would not be impossible to conceive that under Section 53 (1), it is the Commissioner who is the appropriate authority to decide whether the respondents impeded herein have absented themselves from three consecutive meetings of the Board of Trustees and whether further action would have to be taken by him as contemplated in Section 53 (c). Whenever a statute is silent about a process by which a right can be established, then equity steps in accordance with the maxim'' ubi jus, ibi remedium i.e., where there is a right there is a remedy.' The argument of Mr. Krishnamurti that in the absence of a specific provision, in respect of such an enquiry under the Act, no enquiry at all should be undertaken is a wide contention and which I am unable to accept. The petitioners project a right in themselves. Whether such a right exists or not, whether the trustee who has absented himself has ceased to be a trustee or not or whether the Constitution of the Board of hereditary trustees as claimed by the petitioners is proper or not have to be enquired into and the petitioners given the necessary relief. As no right can exist without a remedy, I am of the view that under Section 53 (2), the Commissioner, as the appropriate authority under Section 53 (1) (a) has the right to enquire into a controversy whether a particular hereditary trustee has absented himself from three consecutive meetings of the Board of Trustees and has, therefore, ceased to hold Office as such. Thus it is imperative that an enquiry after hearing all the parties, should be undertaken. Instead of doing this, the Commissioner has summarily rejected the petition and lodged it stating there was no case for interference and on the top of it, stated that the disqualifications mentioned in Section 26 (6) of the Act will not apply to hereditary trustees. I am unable to agree that the disqualifications referred in Section 26 (6) do not apply to a hereditary trustee. The scheme of the Act provides that a trustee includes a hereditary trustee and therefore, the disqualification which an ordinary trustee has to suffer under the Act, would equally be a disqualification for a hereditary trustee as well. It is open, however, to the appropriate authority which, in the instant case, is the Commissioner, to hold an open enquiry into the allegations about the alleged absence of the respondents and after such detailed enquiry come to a decision one way or the other. Until then, it cannot be said that the respondents have ceased to be hereditary trustees of this temple. In the light of the above discussion, it appears to me that if the Commissioner thinks it necessary to have a chairman to the Board of trustees, he may issue a fresh notice under the Act and the rules made therein, calling upon the trustees to elect a chairman. It is however, left to the discretion of the Commissioner to direct the trustees to elect a chairman pending disposal of the enquiry in the complaint preferred by the petitioners against the respondents.

9. The Writ Petition No. 2877 of 1972, is therefore, partly allowed. There will be no order as to costs.

10. The Commissioner, in view of the attitude of the hereditary trustees to come to Court often and probably ignore the administration of the temple, it is advisable, for him to conduct the enquiry early as a special case and dispose it of within 2 months from this date.


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