K.ELANGOVAN v. THE COMMISSIONER

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 22.02.2012CoramThe Honourable Mr.Justice VINOD K.SHARMAW.P.No. 27805 of 2011 and MP.No. 1 of 20111 K.ELANGOVAN 2 P.N.THANGARAJAN 3 A.T.SHANMUGAM ... Petitioners Vs1 THE COMMISSIONER HINDU RELIGIOUS & CHARITABLE ENDOWMENT DEPARTMENT CHENNAI-24.2 THE ADDITIONAL COMMISSIONER (ENQUIRY) HINDU RELIGIOUS & CHARITABLE ENDOWMENT DEPARTMENT CHENNAI-24.... RespondentsPetition under Article 226 of the Constitution of India prayingto issue a writ of certiorarified mandamus calling for the recordspertaining to the impugned order passed by the second respondent inhis proceedings in Na.Ka.No.3647/2009/A1 dated 28.10.2011 and quashthe same so far as the petitioners concerned and consequently directthe respondents to pass orders by refixing the term of office of thepetitioners as non-hereditary trustees for a period of five yearsfrom the date of their appointment i.e.7.12.2009. For Petitioner :Mr.N.SathiamoorthyFor Respondents:Mr.R.Kannan Government Advocate ORDERThe petitioners have approached this Court with a prayer forissuance of a writ in the nature of certiorari, to quash the orderpassed by the second respondent dated 28.10.2011, declining therequest of the petitioners for extension of tenure as trustees of'Arulmigu Muthukumaraswamy @ Kandaswamy Thirukovil Vasantha MandapamTrust'. 2. In a civil suit C.S.No. 265 of 1938 – T.K.KANDAPPA CHETTIYARAND OTHERS v. P.A.NATARAJA CHETTIAR, a scheme was framed for runninga trust. The scheme stipulated as under, https://hcservices.ecourts.gov.in/hcservices/ "For the Vasantha Mandapam Trust, duringDecember month 4 trustees have been appointed byyou. For these 4 Trustees, one year time limit offunctioning has been given to them. Thereafter, inaccordance with general orders, their duration offunctioning has been extended upto two years. But as per the High Court's Scheme No.265/1938, the duration of functioning of the abovetrustees are 5 years. Till this year, you haveappointed the trustees for 5 years durations only.Hence, instead of two years time limit, as per theabove scheme of High Court, the time of functioningmay be extended upto 5 years, and accordingly, issueorders for the same, as requested by hereto. "3. The Tamil Nadu Hindu Religious and Charitable Endowments Act,1951 was enacted, which stands repealed by the Tamil Nadu HinduReligious and Charitable Endowments Act, 1959. 4. Section 118 of the Act reads as under,118. Repeals and Savings. - (1) The Tamil NaduHindu Religious and Charitable Endowments Act,1951, Tamil Nadu Act XIX of 1951, (herein after inthis section referred to as the said Act) ishereby repealed. (2) Notwithstanding the repeal of the said Act bysub section (1) -(a) all rules made, or deemed to have been made,notifications or certificates issued or deemed tohave been issued, orders passed or deemed to havebeen passed, decisions made or deemed to have beenmade, proceedings or action taken or deemed tohave been taken, scheme settled or deemed to havebeen settled and things done or deemed to havebeen done by the Government, the Commissioner, aDeputy Commissioner, an Area Committee or anAssistant Commissioner under the said Act, shall,in so far as they are not inconsistent with thisAct, be deemed to have been made, issued, passed,taken settled or done by the appropriate authorityunder the corresponding provisions of this Act,and shall have effect accordingly;(b) (i) if any provision contained in any schemesettled or deemed to have been settled under theTamil Nadu Hindu Religious and CharitableEndowments Act, 1926, Tamil Nadu Act II of 1927, https://hcservices.ecourts.gov.in/hcservices/ including a scheme settled under Section 92 of theCode of Civil Procedure, 1908, (Central Act V of1908) and in force immediately before the 30thSeptember 1951 is repugnant to any provisioncontained in this Act or the rules madethereunder, the latter provisions shall prevail,and the former provision shall, to the extent ofthe repugnancy, be void;(ii) all powers conferred and all duties imposedby such scheme on any court or Judge or any otherperson or body of persons not being a trustee ortrustees or an honorary officer or servant of thereligious institution or endowment, shall beexercised and discharged by the Commissioner, theJoint Commissioner or Deputy Commissioner or theAssistant Commissioner, as the case may be, inaccordance with the provisions of this Act, (c) all orders made under section 67 of the TamilNadu Hindu Religious Endowments Act, 1926 (TamilNadu Act II of 1927) shall, notwithstanding thatthey are inconsistent with this Act, continue inforce, but any such order may at any time bemodified or cancelled by the Joint Commissioner orthe Deputy Commissioner, as the case may be, if itis an order made under sub section (1) or subsection (3) of that section and by theCommissioner if it is an order made under sub-section (4) or sub section (5) of that section;and any person aggrieved by any modification orcancellation made by the Joint Commissioner, orthe Deputy Commissioner, as the case may be, mayprefer an appeal to the Commissioner within suchtime as may be prescribed. (3) The mention of particular matters in thissection shall not be held to prejudice or affectthe general application of sections 8 and 18 ofthe Tamil Nadu General Clauses Act, 1891 (TamilNadu Act I of 1891) with regard to the effect ofrepeals. "5. It was in pursuance of the provisions of the Tamil Nadu HinduReligious and Charitable Endowments Act, 1959, that the power whichwas vested in High Court under the scheme to appoint a Trustee, stoodvested with the Commissioner. 6. The Commissioner, in exercise of power, appointed thefollowing persons as trustees. https://hcservices.ecourts.gov.in/hcservices/

1. Th.G.Gopal S/o. Govindasamy Chettiar, 233,Evereday Colony, 18th Street, Kodungaiyur, Chennai118. 2. Th. Elangovan, S/o. Kuppusamy Chettiar, 20,Pommu Chetty St., Park Town, Chennai. 33. Th. P.N.Thangarajan, S/o. P.Natesan Chettiar, 9,Subbu Chetty Street, Chennai – 3. 4. Th. A.T.Shanmugam, S/o. Thanickachalam, 6/84,Perambur Chetty St., Washermanpet, Chennai.21. 5. Th. S.Muthu, Senior Trustee, Arulmighu KandasamyThirukkoil, Rasappa Chetty St., Chennai. -3 7. The petitioners, excluding Thiru. S.Muthu, Senior Trustee,moved the Commissioner for extension of tenure as Trustees. Therequest was accepted and tenure was extended by another one year. 8. On expiry of the term, the petitioner again filed,application for extension of tenure. The application has beenrejected vide impugned order, on the ground that as per Section 47 ofthe Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959,the maximum period for which trustee can be appointed is two years,therefore, the petitioners' request was not accepted. 9. Learned counsel for the petitioners challenged the impugnedorder, on the ground that under the scheme framed by this Court, thetenure of members of the Trustees was fixed for five years,therefore, it was not open to the respondents to decline the requeston the ground that the tenure could not be extended beyond two years. 10. It is also the contention of the learned counsel for thepetitioners, that in view of the scheme, the Senior Trustee wasappointed for five years and therefore, by applying the sameyardstick, the petitioners are also entitled to continue as Trusteesfor five years. The impugned order therefore cannot be sustained. 11. Learned counsel for the respondents, on the other handcontends that in view of Section 118(b), of the Tamil Nadu HinduReligious and Charitable Endowments Act, 1959, the judgment anddecree passed by any Court are subject to the provisions of the Act,which has over riding effect on the judgment and decree. 12. In view of the bar under Section 47(3) of the Act, theapplication of the petitioners was rightly rejected, as the firstrespondent did not have any jurisdiction to appoint Trustees for aperiod of more than two years. The petitioners had been appointed fortwo years in two separate terms by extending one year first term https://hcservices.ecourts.gov.in/hcservices/ with another one year of second term. 13. On consideration, I find that the impugned order cannot befaulted with. But at the same time, it is the duty of theCommissioner to appoint Trustees, in terms of the Act, for a periodof two years. The stand of the learned counsel for the respondents isthat in case the petitioners makes an appropriate application showingeligibility for appointment, then their case can be considered forfresh appointment, but their application for extension cannot beconsidered being against the statute. 14. In view of the stand taken by the learned counsel for therespondents, the writ petition is disposed of with liberty to thepetitioners to move appropriate application for appointment asTrustees as per the eligibility criteria laid down by this Court inthe scheme and if any such application is moved, it shall beconsidered by the first respondent and disposed of within one monthof the date of receipt of the application for appointment as Trustee. No costs. Connected MP is also closed. Sd/ Asst.Registrar //True Copy// Sub.Asst.Registrarbg/To1 THE COMMISSIONER HINDU RELIGIOUS & CHARITABLE ENDOWMENT DEPARTMENT CHENNAI-24.2 THE ADDITIONAL COMMISSIONER (ENQUIRY) HINDU RELIGIOUS & CHARITABLE ENDOWMENT DEPARTMENT CHENNAI-24.1 cc to Mrs.V.J.Latha , Advocate, Sr.No.122891 cc to Mr.N.Sathiamoorthi , Advocate, Sr.No.125711 cc To Government Pleader, SR.No.12140W.P.No.27805 of 2011 ev(co)pmk.28.2.2012