A.Pachaiappa Gounder @ Pachaiappa Poosari v. The Special Commissioner & Commissioner Hindu Religious & Charitable Endowment Administration Department

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 8.9.2009CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANIW.P.No.4140 of 2008A.Pachaiappa Gounder @ Pachaiappa Poosari.. PetitionerVs.1. The Special Commissioner & Commissioner Hindu Religious & Charitable Endowment Administration Department Nungambakkam High Road, Chennai-34.2. The Deputy Commissioner Hindu Religious & Charitable Endowment Administration Department Myladuthurai, Villupuram District... RespondentsPRAYER: Petition under Article 226 of the Constitution of Indiafor issue of a writ of Mandamus to direct the first respondentherein to entertain the petition dated 8.1.2008 made inK.Dis.1351/2008(D2) filed under Section 16(2) of the Tamil NaduHindu Religious and Charitable Endowments Act, 1959 in exercise ofhis suo motu power and to decide the same on merits.For Petitioner :Mr.N.ManokaranFor Respondents :Mr.T.Chandrasekaran Spl. Government PleaderORDERHeard Mr.N.Manokaran, learned counsel for the petitioner andMr.T.Chandrasekaran, learned Special Government Pleader for therespondents.2. As against the order of the second respondent dated20.6.1995 passed in O.A.No.27 of 1993 which was under Section 64of the Tamil Nadu Hindu Religious and Charitable Endowments Act,1959 (for brevity, "the Act") settling a scheme, if anybody isaggrieved his right is only to file an appeal under Section 69(1)of the Act, which is as follows: https://hcservices.ecourts.gov.in/hcservices/ "Section:69. Appeal to the Commissioner.- (1) Anyperson aggrieved by any order passed by the JointCommissioner or the Deputy Commissioner, as the casemay be, under any of the foregoing sections of thischapter, may within sixty days from the date of thepublication of the order or of the receipt thereof byhim as the case may be, appeal to the Commissioner andthe Commissioner may pass such order thereon as hethinks fit."The said provision enables the affected party to file an appeal tothe Commissioner, viz., the first respondent within sixty days. 3. In the present case, when the scheme was settled by thesecond respondent on 20.6.1995, the petitioner, who claims to be incontrol of the temple for three generations, instead of filing anappeal has approached the first respondent by filing an applicationunder Section 69(2) of the Act. Section 69(2) of the Act is asfollows:"Section:69. Appeal to the Commissioner.-(1) ***(2) Any order passed by the Joint Commissioner or theDeputy Commissioner, as the case may be, in respect ofwhich no appeal has been preferred within the periodspecified in sub-section (1) may be revised by theCommissioner suo motu and the Commissioner may callfor and examine the records of the proceedings as tosatisfy himself as to the regularity of suchproceedings or the correctness, legality or proprietyof any decision or order passed by the JointCommissioner or the Deputy Commissioner, as the casemay be. Any such order passed by the Commissioner inrespect of an order passed by the Joint Commissioneror the Deputy Commissioner, as the case may be, shallbe deemed to have been passed by the Commissioner onan appeal preferred to him under sub-section (1)."Under section 69(2) of the Act a suo motu power is available to theCommissioner in cases where he is satisfied that an earlier orderhas been passed which is irregular or improper. It is true thatfor exercise of such suo motu power there is no period oflimitation contemplated, while the appeal by the aggrieved personhas to be filed under Section 69(1) of the Act within sixty days.4. It was taking the said application filed by the petitionerunder Section 69(2) of the Act, the first respondent has passed theimpugned order on 24.1.2008 directing the petitioner to file appealunder Section 69(1) of the Act against the scheme settled on https://hcservices.ecourts.gov.in/hcservices/

20.6.1995 passed in O.A.No.27 of 1993 with an application forcondonation of delay. It was with the said endorsement theapplication filed by the petitioner under Section 69(2) of the Actcame to be returned. In such a situation the petitioner has filedthe present writ petition for a writ of mandamus against the firstrespondent to entertain the said application dated 8.1.2008 filedunder Section 69(2) of the Act.5. On the face of it, the present writ petition is notmaintainable. The case of the petitioner is that when thepetitioner and his family members have been in control of thetemple for many generations, the applicants in O.A.No.27 of 1993without even making the petitioner as a party have obtained anorder under Section 64(1) of the Act by way of settled scheme byplaying fraud on the petitioner by not making him as a party. Thepetitioner is certainly a person aggrieved as per Section 69(1) ofthe Act and such person aggrieved has a right of appeal which is aneffective remedy given under the statutory provision. When sucheffective remedy is available, it is certainly not open to thepetitioner to compel the first respondent to exercise suo motupowers under Section 69(2) of the Act, especially when the decreepassed in O.A.No.27 of 1993 is in detail with reasons.6. In the order dated 24.1.2008, while returning theapplication filed under Section 69(2) of the Act, the firstrespondent has only directed the petitioner to file an appeal andthere is absolutely no grievance on the part of the petitioner atall, especially when the first respondent has even directed topetitioner to file an application to condone delay. If really thepetitioner was not made as a party in the proceedings before thesecond respondent in O.A.No.27 of 1993 and the petitioner was notaware of such proceedings in which the scheme was settled as earlyas in the year 1995, it is for him to explain while filing appealunder Section 69(1) of the Act the reason for the delay and that hehad not knowledge of the scheme settled, and it is certainly opento the first respondent to consider the same in proper perspectiveand decide the appeal on merits.7. In such view of the matter, the writ petition fails and thesame is dismissed, however with liberty to the petitioner to filean appeal against the order dated 20.6.1995 made in O.A.No.27 of1993 under Section 69(1) of the Act with necessary application forcondonation of delay. If such an appeal is filed with condonedelay application within a period of one week from the date ofreceipt of a copy of this order, the first respondent shall receivethe same and pass appropriate orders in respect of the condonationof delay and also decide the matter on merits, if he is convincedabout the reasonableness of the delay in filing the appeal as it isenumerated above. https://hcservices.ecourts.gov.in/hcservices/ This writ petition is dismissed with the above direction. Nocosts. Consequently, M.P.No.1 of 2008 is closed.Sasi08.09.2009 This Writ Petition having been posted on Thursday, theFifteenth day of October 2009 under the caption, 'For beingmentioned', subsequent to the order of this Court dated 8.9.2009and made herein and in the presence of the aforesaid advocates, theCourt made the following order:- This Writ Petition came up under the caption for 'beingmentioned'. By order dated 08.09.2009, while dismissing the writ petition,this Court given permission to the petitioner to file appealagainst the order dated 20.6.1995 made in O.A.No.27 of 1993 undersection 69(1) of the H.R. & CE Act with necessary application forcondonation of delay. In view of the request made by the Learned Counsel for thepetitioner, petitioner is directed to file such appeal within oneweek from today.15.10.2009 Sd/-Asst. Registrar//True Copy//Sub Asst. RegistrarTo:1. The Special Commissioner & Commissioner Hindu Religious & Charitable Endowment Administration Department Nungambakkam High Road, Chennai-34.2. The Deputy Commissioner Hindu Religious & Charitable Endowment Administration Department Myladuthurai, Villupuram District.+ 1 cc to Mr.N.Manokaran, Advocate SR No.54016+ 1 cc to Government Pleader, SR No.45022W.P.No.4140 of 2008TS(CO)SR/17.9.2009SRA/19.10.2009