G.Shanmugam v. The Commissioner

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 19.02.2010CORAMTHE HONOURABLE MRS. JUSTICE R.BANUMATHIandTHE HONOURABLE MR. JUSTICE M.M.SUNDRESHW.A. No.1447 of 2009 and W.P.No.9116 of 2009and M.P.No.1 of 2009G.Shanmugam ... Appellant in W.A. And Petitioner in W.P.vs.1. The Commissioner, HR&CE (Admn) Department, Nungambakkam High Road, Chennai – 600 034.2. The Joint Commissioner, HR&CE (Admn) Department, Coimbatore – 641 018.3. A.Saraswathi D/o. Gurunatha Pillai4. G.Kuppusamy, S/o. Gurunatha Pillai5. G.Palanisamy, S/o. Gurunatha Pillai6. G.Murugesan S/o. Gurunatha Pillai7. G.Arumugam S/o. Gurunatha Pillai8. G.Sakthivadivelu S/o. Gurunatha Pillai... Respondents in both https://hcservices.ecourts.gov.in/hcservices/ Prayer in W.A.No.1447 of 2009This Appeal filed against the order dated 14.08.2009 inM.P.No.2/2009 vacating the stay order in W.P.No.9116 of 2009 passedby this Court.Petition for Stay :Pleased to stay the operation of the impugned order passed by the1st respondent made in A.P.No.53/2007-D2, dated 03.4.2009 pendingdisposal of the Writ Petition.MP 2/2009, Vacating StayPleased to vacate the interim stay granted by this court on14.5.2009 in MP No.1/2009 in WP No.9116/09, pending WP No.9116/2009. Prayer in W.P.No.9116 of 2009Petition filed under Article 226 of the Constitution of India forthe issuance of writ of certiorari, calling for the records relatingto the orders passed by the 1st respondent herein made inA.P.No.53/2007-D2, dated 03.04.2009 and quash the same.For Appellant/Petitioner :Mr.N.R.Chandran Senior Counsel in both W.A.&W.P. for Mr.G.SugumaranFor R1 and R2 :Mr.T.Chandrasekaran Special Government Pleader in both W.A.&W.P.For R3 to R8 :Mr.W.C.Thiruvengadam in both in both W.A.&W.P.COMMON ORDERM.M.SUNDRESH, J.The writ appeal has been preferred by the appellant,challenging the order passed in M.P.No.2 of 2009 in W.P.No.9116 of2009, vacating the order of stay granted in M.P.No.1 of 2009. Sincethe writ appeal and the writ petition are taken up for hearing withthe consent of the parties, a common order is passed. 2. The brief facts of the case in a nutshell are as follows:(a) By proceedings dated 30.12.1964 in O.A.No.100 of1962, the Trusteeship of Arulmighu Badrakaliamman Temple, Erode https://hcservices.ecourts.gov.in/hcservices/ District has been declared as Hereditary Trustee. One Mrs.Kuppurathinammal and her sister Rajammal were declared as Hereditarytrustees to function by a term of one year each. (b) The said Kuppurathinammal was suspended by theproceedings dated 23.07.1984 and when the said proceedings arepending, she gave a letter of consent under Section 54(2) of theTamil Nadu Hindu Religious and Charitable Endowments Act, 1959,stating that in view of the fact that she was undergoing temporarysuspension under Section 53(2) of the Act, her eldest sonMr.G.Shanmugam, who is the writ petitioner and the appellant herein,may be considered for the appointment of Hereditary Trustee. Therespondents 3 to 8 herein, being the children of the saidKuppurathinammal, also gave similar consent letters in favour ofMr.G.Shanmugam. Accordingly, an order was passed by the DeputyCommissioner, H.R.&C.E., Coimbatore, appointing the writ petitioneras the Hereditary Trustee in the place of his mother.(c) Mrs. Kuppurathinammal, who is the mother of thepetitioner and the Respondents 3 to 8 died on 03.04.1994.Thereafter, the petitioner filed O.S.No.540 of 1999 seeking a decreefor permanent injunction, restraining the respondents 3 to 8 herein,from interfering with his Management and Administration of the templeas the Hereditary Trustee. The said suit filed by the petitioner wasdecreed. Thereafter, the respondents 3 to 8 filed an applicationbefore the second respondent herein in M.P.No.26 of 2005, seeking toset aside the earlier order granted in M.P.No.9 of 1992. The saidapplication was dismissed by the second respondent by holding that inview of the consent earlier, the request of the respondents 3 to 8cannot be considered. The appeal filed by the respondents 3 to 8 inA.P.No.53 of 2007 was allowed by the first respondent on the groundthat the earlier consent was not final and inasmuch as the law ofsuccession having been applicable, the entire matter will have to beconsidered afresh. Accordingly, the first respondent has remandedthe matter to the 2nd respondent to decide the issue of succession toHereditary Trusteeship afresh.(d) Not satisfied with the said order passed by the firstrespondent, the petitioner filed the writ petition in W.P.No.9116 of2009, seeking to set aside the same. The learned single Judge aftergranting an order of interim stay initially has vacated the same andchallenging the said order, the petitioner preferred a writ appeal.With the consent of the parties, we have taken up the writ petitionand the writ appeal together and a common order is passed.3. Mr.N.R.Chandran, learned senior counsel appearing for thepetitioner submitted that when the order was passed by the DeputyCommissioner, Coimbatore in M.P.No.9 of 1992 dated 21.12.1992, thesaid order being a final order, the only option open to therespondents 3 to 8 is to file an appeal. Therefore, the very https://hcservices.ecourts.gov.in/hcservices/ application filed by the respondents 3 to 8 is not maintainable inlaw, in the absence of a power of review. The learned counselfurther submitted that the decree obtained by the petitioner hasbecome final and the relinquishment made by the respondents 3 to 8 isalso final. Therefore, the writ petition will have to be allowed bysetting aside the order of the first respondent.4. Per contra, Mr.W.C.Thiruvengadam, learned counselappearing for the respondents 3 to 8 submitted that it is wellestablished the principles of law that under Section 54(1) of theTamil Nadu Hindu Religious and Charitable Endowments Act, 1959, thelaw of succession operates after the death of the Hereditary Trustee.The post of the Hereditary Trustee is like that of the Dharmakarta ora Manager and therefore the order impugned in the writ petition beingan order of remand will have to be sustained. The learned counselfurther submitted that the question of limitation would not arise,since there is no limitation to establish a vested right and in sucha case even without an application, the succession of the respondents3 to 8 will have to be recorded. Therefore the learned counselsought for the dismissal of the writ petition and the appeal. Insupport of his contention, the learned counsel has relied upon theJudgement rendered in W.P.No.11395 of 1995, dated 18.06.2002, 2002(5) CTC 31 (N.Muthuvali vs. The Joint Commissioner, HR & CEAdministrative Department, Palayamkottai, Tirunelveli- 2 & 3 Others)and AIR 1986 MADRAS 41 (Chettimai C.Nanjappa Chettiar (deceased byL.R.) and another, Appellants v. S.N.Kuppuswami Chettiar and others.,Respondents)5. The learned Government Pleader based upon the counteraffidavit submitted that after the death of Kuppurathinammal, theproceedings initiated against her, as well as the subsequentproceedings got abated and therefore the order passed by the firstrespondent is perfectly valid in law.6. Heard Mr.N.R.Chandran, learned senior counselrepresenting Mr.G.Sugumaran, learned counsel for the petitioner onrecord and Mr.W.C.Thiruvengadam, learned counsel appearing for therespondents 3 to 8 and the Mr.T.Chandrasekaran, learned counselappearing for the respondents 1 and 2.7. It is not in dispute that the Hereditary TrusteeMrs.Kuppurathinammal was placed under suspension from 23.07.1984onwards, in regard to the proceedings under Section 53(2) of theTamil Nadu Hindu Religious and Charitable Endowments Act, 1959. Itis also not in dispute that the said Kuppurathinammal along with therespondents 3 to 8 gave letters of consent. It is also to be seenthat the said consent letters have been given under Section 54(2) ofthe Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959.A reading of the above said provision would show that when atemporary vacancy occurs by reason of the suspension of the https://hcservices.ecourts.gov.in/hcservices/ Hereditary Trustee under Section 53(2) of the Tamil Nadu HinduReligious and Charitable Endowments Act, 1959, the next in the lineof succession shall be entitled to succeed. Therefore, the saidconsent letters have been given, pending the proceedings initiatedagainst Mrs.Kuppurathinammal.8. Further reading of the order passed by the DeputyCommissioner, H.R.&C.E. Department, Coimbatore in M.P.No.9 of 1992would show that the said order is pending the proceedings againstKuppurathinammal. The above said order clearly states that in orderto give an opportunity, the writ petitioner was recognised asHereditary Trustee and the said order was passed without prejudice tothe legal rights of the deceased Kuppurathinammal to prove her caseagainst the charges framed. Therefore, from the above said order, itis clear that the order passed in M.P.No.9 of 1992 is for temporaryarrangements. Hence, from the said order, it is clear that theconsent letters given by the respondents 3 to 8 could only be madeapplicable till the proceedings against Mrs.Kuppurathinammal waspending.9. Admittedly, Mrs.Kuppurathinammal died on 03.04.1994,therefore, the line of succession gets opened on her death. Thepetitioner cannot contend that the earlier letters of consent givenby the respondents 3 to 8 are binding on them. The contention of thelearned senior counsel that the application filed by the respondents3 to 8 in M.P.26 of 2005 is not maintainable also cannot becountenanced since by the said application, it was only brought tothe knowledge of the second respondent that in view of the death ofthe mother, the issues of Hereditary Trusteeship will have to bedecided afresh and the earlier order passed no longer survives. 10. The other contention of the learned senior counsel thatin view of the decree obtained by the petitioner against therespondents 3 to 8, it is not to open to them to contend that theconsent was only temporary also cannot be accepted. A perusal of thejudgement and decree rendered in O.S.No.540 of 1999 on the file ofthe first Additional District Munsif Court, Erode would show that thesaid Judgement has been rendered based upon the order passed inM.P.No.9 of 1992. The said Judgement is not binding on therespondents 3 to 8, more so, the respondents 1 and 2 who are theStatutory Authorities exercising the power under the Act and whenthey are also not parties to the suit. Further, the impugned orderpassed being an order of remand to decide the entitlement ofHereditary Trustee, we are of the considered opinion that the saidorder cannot be interfered with. https://hcservices.ecourts.gov.in/hcservices/

11. Accordingly, the writ petition and the writ appeal arehereby dismissed. However, it is made clear that the secondrespondent shall consider all the issues raised by the petitioner andthe respondents 3 to 8 on merits and in accordance with law andwithout being influenced by the order passed by us. 12. With these observations, the writ petition and writappeal are dismissed. No costs. Consequently, connectedmiscellaneous petition is closed. Sd/- Asst. Registrar./true copy/ Sub Asst. Registrar.ogyTo1. The Commissioner, HR&CE (Admn) Department, Nungambakkam High Road, Chennai – 600 034.2. The Joint Commissioner, HR&CE (Admn) Department, Coimbatore – 641 018.+ 1 cc to Mr.N.C.Thiruvenkatam CC Sr 11372+ 2 ccs to G.Sugumaran, CC Sr 11274, 11275+ 1 cc to Govt., Pleader CC SR 11288 & 11289W.A. No.1447 of 2009andW.P.No.9116 of 2009MBS (CO)RH (25.2.10)