IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 03.08.2010
CORAM
THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN
W.P.NO.8521 OF 2010
AND M.P.NO.1 OF 2010
1.Thangamuthu Pillai
2.Krishna Konar @ Krishnan
3.Palanimuthu Pandian
4.Sethu @ Sethuramalingam
5.Muthumani Servai ... Petitioners
Versus
1.The Commissioner
Hindu Religious & Charitable Endowments
Mahatma Gandhi Salai,
Nungambakkam, Chennai 600 034.
2.The Joint Commissioner
Hindu Religious & Charitable Endowments
Administration Department
Madurai 625 001.
3.The Inspector
Hindu Religious & Charitable Endowments
Periyakulam, Theni District.
4.M.Vellaichami
5.R.Dhanushkodi
6.S.Raju
7.V.Rajaram
8.K.Arjunan ... Respondents
PRAYER: Writ petition filed under Article 226 of the Constitution of India praying for the issuance of writ of certiorari, calling for the records pertaining to the impugned order passed by the 1st respondent herein in A.P.No.4/2008/D.2 (remanded) dated 03.03.2010, quash the same.
For Petitioner : Mr.T.R.Rajagopalan
Senior counsel for Mr.D.Ravichander
For Respondents 1-3: Mr.T.Chandrasekaran
Special Government Pleader (HR & CE)
For Respondents 4-8: Mr.M.S.Krishnan
Senior counsel for Mr.N.Manoharan
O R D E R
Arulmigu Pattalamman and Muthaiyasamy temples are situated at Melmangalam Village, Periyakulam Taluk, Theni District. It is a public temple and is in existence for more than 100 years. In 1976, persons representing 5 communities viz., Ambalam, Servai, Pandaram, Konar and Pillai applied to frame a Scheme under Section 64 (1) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (Shortly “the Act”) before the then Deputy Commissioner, Hindu Religious & Charitable Endowments Administration Department, Madurai. The Deputy Commissioner adjudicated the matter and framed a Scheme in O.A.No.8/1976 by an order dated 13.05.1982 for administration of the temple. As per the Scheme, the administration have been vested with 5 Trustees and each one of the Trustees would be selected from the members of the aforesaid 5 communities. The Trustees have to elect one among them as a Chairman. The tenure of Trustees was fixed at 3 years.
2.Later, some persons representing Rajakula Ahamudaiyar Community of the village sought for a modification of the Scheme by filing O.A.No.1/1997 before the Joint Commissioner, HR & CE Administration Department, Madurai, the second respondent herein. The Joint Commissioner, HR & CE Administration Department, Madurai after hearing both sides, dismissed the O.A.No.1/1997 on 28.11.2007 on the ground that while framing the Scheme by an order dated 13.05.1982 in O.A.No.8/1976, due procedure was followed and the members of all communities were given opportunities to participate in the adjudication proceeding and to make their objections if any.
3.Against the order dated 28.11.2007 in O.A.No.1/1997 of the Joint Commissioner, HR & CE Administration Department, Madurai, an appeal was preferred before the Commissioner, HR & CE Department, Chennai, the first respondent herein, under Section 69(1) of the Act, in A.P.No.4 of 2008 D.2. The appeal was allowed by the first respondent on 19.12.2008 by setting aside the very Scheme framed in O.A.No.8/1976.
4.Aggrieved by the order dated 19.12.2008 of the first respondent, the Trustees, the petitioners herein, who administer the temple, filed writ petition in W.P.No.2002 of 2009. This Court allowed the writ petition on 08.12.2009 and remanded the matter back to the Commissioner to decide the issue afresh.
5.On remand, the Commissioner, the first respondent herein, passed an order dated 03.03.2010 remanding the matter in O.A.No.1/1997 to the original authority namely, the Joint Commissioner, HR & CE Administration Department, Madurai to consider the whole issue for modification of the Scheme framed in O.A.No.8/1976. The order dated 03.03.2010 of the first respondent is put to challenge in this writ petition, by the the petitioners, who belong to the 5 communities referred to above and who are now administering the temple pursuant to the Scheme framed in the year 1982. The respondents 4 8 belong to Rajakula Ahamudaiyar Community.
6.Notice of motion was ordered on 27.04.2010 and an order of interim stay was also granted. The respondents 4 to 8 have filed counter affidavit.
7.Heard Mr.T.R.Rajagopalan, learned senior counsel for the petitioner; Mr.T.Chandrasekaran, learned Special Government Pleader (HR & CE) for the respondent 1 to 3 and Mr.M.S.Krishnan, learned senior counsel for the respondents 4 to 8.
8.The learned senior counsel for the petitioners submit that the Commissioner did not give any reason for remanding the matter to the Joint Commissioner for his decision. The Commissioner could not simply remand the matter just because the respondents 4 to 8 herein sought for a remand.
9.On the other hand, the learned senior counsel representing the respondents 4 to 8 submits that the order of the Commissioner is a well reasoned order and that in fact, the petitioners herein sought for remand. It is submitted that the petitioners herein contended before the Commissioner that the Commissioner has no jurisdiction to modify the scheme. The learned senior counsel also submits that the Commissioner took note of the order passed by the then Deputy Commissioner while framing the Scheme that the appointment of members of the 5 communities as Trustees of the temple was in the nature of adhoc one and the issue of appointment of permanent Trustees could be considered at a later point of time. In these circumstances, the Commissioner, remanded back to the Joint Commissioner to modify the Scheme after hearing all the persons having interest. The learned senior counsel further submits that there are about 250 families representing the 5 communities, who are now administering the temple, while the Rajakula Ahamudaiyar Community alone have 300 families. It is also submitted that there are also other communities in the Melmangalam village and members of those communities are not given representation for the administration of the temple.
10.The learned Special Government Pleader for the respondents 1 to 3 submits that Section 64(5) of the Act contemplates that modification of a Scheme could be made after hearing the “persons having interest.” It is submitted that “persons having interest” is defined under Section 6(15) of the Act and it is a wider definition that includes all persons who come for worship to the temple.
11.The learned Special Government Pleader submits that apart from the 5 communities who are now administering the temple, other communities such as Rajakula Ahamudaiyar Community and Harijans constitute substantial in number. It is also submitted that as per Section 47(1)(c) of the Act, Schedule Caste community should be provided due representation in the administration of the temple, while Trustees are appointed by the Department. Likewise, women should also be given representation in the administration, as per Section 47(1)(c) of the Act. According to him, the spirit of Section 47(1)(c) should be kept in mind while framing a Scheme under Section 64(1) of the Act.
12.I have considered the arguments advanced on either side. The arguments advanced by the learned senior counsel for the respondents looks very attractive, at the first blush. It is true that the Commissioner could not simply remand the matter only at the request of the respondents. But it is no so. As rightly contended by the learned senior counsel for the respondents that the petitioners argued before the Commissioner that the Commissioner cannot modify the Scheme. Para 3 of the order dated 03.03.2010 of the first respondent contains the submissions made by the petitioners herein before the Commissioner. The same is extracted hereunder:
“3….. The counsel for respondent quoted a case reported in 2003 (1) MLJ 34 in the matter of N.T.Shanmugham and others Vs. Kondalvannan and others in which it was held by the High Court that the Commissioner, HR & CE has no power to amend, modify or vary the final Scheme, or in other words, he has no authority or jurisdiction to modify the Scheme while considering the appeal filed against the draft Scheme.”
13.Therefore, the crux of the submissions of the petitioners before the Commissioner was that the Commissioner could not decide about the modification of the Scheme and it should go for remand before the Joint Commissioner. In these circumstances, the respondents also sought for remanding the matter to the Joint Commissioner.
14.Now, as rightly contended by the learned senior counsel for the respondents 4 to 8, the Commissioner himself has powers to modify the Scheme being the appellate authority. The appellate authority has all the powers of the original authority. In any event, that was the approach of both parties before the Commissioner. Moreover, the Commissioner also took note of the fact that the vesting of management to the 5 members of the 5 communities in Melmangalam Village by the Deputy Commissioner of HR & CE was only of a temporary nature. In this regard, para 4 of the order of the Commissioner is extracted hereunder:
“4………… The Deputy Commissioner had observed in his order that vesting the management in the members of five communities of Melmangalam Village shall be considered later. It is, therefore, manifest that the Deputy Commissioner had not arrived at a subjective satisfaction to frame a Scheme vesting the management exclusively in the members belonging to the five communities of Melmangalam Village/ But contrary to his own observation a provision in clause 3 was made as it directly affects the Rule of subjective satisfaction.”
15.The Deputy Commissioner passed a detailed order in O.A.No.8/1976, wherein he has held as follows:
“”The petitioners have naively suggested in the petition that the trust should be managed by 5 Nattanmaikars each one of them to be selected by the members of Ambalams, Servia, Pandaram, Konar and Pillai Communities.”
“The claims of the petitioners that Ambalams, Servai, Pandaram, Konar and Pillai Communities of Keelatheru of Melmangalam Village, Periakulam Taluk, Madurai District alone should be appointed as Nattanmais of the said communities as existing trustees of the temple will be considered later”.
16.While the order of the Deputy Commissioner was in the above terms, para 3 of the Scheme, that was framed pursuant to his order, vests the administration of the temple with the 5 communities. Para 3 of the Scheme is as follows:
“3.The above mentioned institution and its properties shall be administered by 5 trustees each one of them to be selected by the members of Ambalams, Servai, Pandaram, Konar and Pillai communities of Keelatheru of Melmangalam village. The trustees shall within one month from the date of their appointment elect one among themselves as Chairman Board of Trustees who will hold office for a period of three years. The Board of trustees shall have all the powers of rights, honour and duties conferred or imposed by one provisions of the act and rules framed thereunder.”
17.Therefore, the Commissioner was of the opinion that para 3 of the Scheme runs contrary to the reason given in the order framing a Scheme. Thus, the Commissioner came to the conclusion that the modification is prima facie necessary based on the aforesaid observation made by the Deputy Commissioner while framing a Scheme and instead of doing himself, the Commissioner remanded the matter to the Joint Commissioner to perform the work. Adequate representation to all communities in the village in the administration of the temple has to be provided so as to keep peace and amity in the village. Hence, I do not find any infirmity in the order of the Commissioner remanding the matter to the Joint Commissioner for modification of the Scheme sought for in O.A.No.1/1997 by the respondents 4 to 8 representing Rajakula Ahamudaiyar Community, particularly when both parties sought for remand. Thus the impugned order does not require interference and the writ petition is dismissed.
18.The Joint Commissioner, HR & CE Administration Department, Madurai is directed to take into account the persons having interest in the temple as stated in Section 64(5) read with 6(15) of the Act and also the sprit of Section 47(1)(c) while adjudicating O.A.No.1/1997 seeking modification of the Scheme under Section 64(5) of the Act. The Joint Commissioner is directed to decide the matter as expeditiously as possible.
19.The writ petition is dismissed with the above observations. No costs. Consequently, connected miscellaneous petition is closed.
TK
To
1.The Commissioner
Hindu Religious & Charitable Endowments
Mahatma Gandhi Salai, Nungambakkam, Chennai 600 034.
2.The Joint Commissioner
Hindu Religious & Charitable Endowments
Administration Department
Madurai 625 001.
3.The Inspector
Hindu Religious & Charitable Endowments
Periyakulam,
Theni District
