Dharma Paripalana Sabha v. Hindu Religious and Charitable Endowments(Admn.) Dept.

IN THE HIGH COURT OF JUDICATURE AT MADRASDate: 30.07.2009Coram:The Honourable Mrs. Justice PRABHA SRIDEVANandThe Honourable Mr. Justice C.T. SELVAMWrit Appeal No.76 of 2009---Dharma Paripalana Sabha,rep. By its SecretaryA.N.Srinivasa Rao.. Appellant/Petitionervs.The Commissioner,Hindu Religious and Charitable Endowments(Admn.) Dept.,Nungambakkam High Road,Chenna-34... Respondent/RespondentWrit Appeal filed under Clause 15 of the Letters Patent, prayingfor the relief stated therein. Writ Petition filed under Article226 of the Constitution of India seeking a Writ of Certiorari to callfor the records of the respondent relating to Suo Moto Revision6/2008 D2/RC No.55323/2008 dated 8.11.2008 and quash the same. For Appellant : Mr.K.Doraisami, Senior Counsel for M/s.Muthumani DoraisamiFor Respondent : Mr.P.Chandrasekar, Special Govt. Pleader(HR & CE).---J U D G M E N T(Was made by PRABHA SRIDEVAN, J)The writ appeal is preferred against the order passed by alearned single Judge of this Court dated 19.12.2008 made inW.P.No.30115 of 2008.2. The appellant/petitioner was declared as the hereditarytrustee of Sri Ananthapadmanabhaswami Temple, Gandhinagar, Madras, bythe order of the Deputy Commissioner, Hindu Religious and CharitableEndowments (Administration) Department, Madras-34, in O.A.No.101 of1963 dated 21.3.1964 in an application filed under Section 63(b) of https://hcservices.ecourts.gov.in/hcservices/ the Madras Act 22 of 1959. The appellant/petitioner is aggrieved bythe notice seeking to review the order dated 21.3.1964 and the so-called notice of suo motu revision issued by the Commissioner, HR &CE. The learned single Judge dismissed the writ petition on theground that it is not the case of the petitioner that the impugnednotice is issued either without jurisdiction or contrary to theprovisions of the Act, and therefore, this writ appeal has beenfiled. 3. The learned Senior Counsel appearing for theappellant/petitioner submitted that it was precisely their case thata suo motu revision is not sustainable either on law or on facts andthe invocation of the power of suo motu revision after 44 yearscannot be sustained, and therefore, the learned Senior Counselsubmitted that when the show cause notice itself is arbitrary on theface of it, it is not necessary for the appellant to respond to it.The learned Senior Counsel also submitted that it strictly cannot becalled a show cause notice because the impugned notice clearly showsthat the Commissioner had decided that the appellant Sabha cannotclaim to be the hereditary trustee and therefore, the notice callingupon the appellant to be present for an enquiry was an emptyformality since the matter had been prejudged. The learned SeniorCounsel has produced all that led to the filing of petition underSection 63(b) by which the appellant was declared as the hereditarytrustee. It is also their case that it is not as if that therespondent had issued notice on their own. But, it was instigated bypersons, who are inimically disposed of towards the persons, rightnow in administration of the Sabha. 4. The learned Special Government Pleader submitted that the showcause notice was issued under Section 69(2) of the Act and Section 69(2) clearly shows that this power of suo motu revision can beexercised at any time, and therefore, the lapse of 44 years will notin any way affect the jurisdiction of the notice. Learned SpecialGovernment Pleader also referred to the decision reported in 2004 (3)CTC 536 (Commissioner, HR & CE. (Admn.) v. Vedantha Sthapna Sabha,which was ostensibly the reason for the invocation of the suo motupower of the revision.5. Normally interference at the show cause notice stage is notdone. But the grievance in this case is that the issue is alreadyprejudged and the notice lacks jurisdiction. In 1996 1 SCC 327, ithas been held that it should be shown that the authority has no poweror jurisdiction to issue the show cause notice to warrantinterference at that stage.6. The documents relating to the formation of the Adyar TempleSociety, and the application to declare itself as the hereditarytrustee have been enclosed in the typed set of papers and they are asfollows:- https://hcservices.ecourts.gov.in/hcservices/ The first General Body Meeting relating to the Adyar TempleSociety was held on 12.12.1956 and the body known as 'The Adyar HinduReligious Society' was formed. There are documents to show that theresidents of the two colonies of Gandhinagar and Kasturbanagarexpressing their desire to have a place of worship had approached HisHighness the Maharaja of Travancore to allot a convenient place nearthe Bus Stand for constructing a temple. An area covering 6.8grounds was bid for the temple and it is thereupon on 12.12.1956, theAdyar Hindu Religious Society was formed. It was registered on31.12.1956 with the help of contribution from donors, a temple wasconstructed. The objects of the Adyar Hindu Religious Society interalia included a construction and maintenance of temples, mandapams,matams, etc. and also maintenance of Library of Spiritual,Philosophical and Religious books. The Annexure to the Minutes ofthe Meeting related to Adyar Hindu Religious Society and the namesof the original signatories of the Managing Committee. Thereafter,on 28.1.1962, it was decided that this Society should be dissolvedand the Society's assets and liabilities should be taken over by theDharmaparipalana Sabha, Madras. On the same day, the First GeneralBody meeting of the appellant Sabha was held. This Sabha wasregistered as a Society in the Societies Registration Act and it hadsimilar objects to that of the erstwhile Society. There was amemorandum of objects as well as byelaws. On 16.4.1962 at theManaging Committee Meeting, it was decided inter alia that theAnantha Padmanabha Temple would be demonstrated by the Committee ofmanagement. This shows that a notice had been received by the AdyarHindu Religious Society as it then was, which called upon theSecretary to explain as to why a Board of Trustees should not beappointed for the Temple inasmuch as it come under Section 6(20) ofthe Madras H.R. & C.E. Act 22 of 1959. Then on 24.8.1963, theCommissioner, H.R. & C.E. Board was addressed by the appellant Sabhaenclosing the Memorandum of Association and Byelaws wherein it wasstated that the Sabha is the parent body, which constructed theTemple and attends the day-to-day running of the Templeadministration and the rights and duties of the erstwhile Society hadvested in the appellant Sabha, and in the said circumstances, theyrequested the Commissioner to consider the Dharma Paripalana Sabha asthe founder and hereditary Trustees invested with rights and dutiesof such hereditary Trustees. 7. This was returned on 31.8.1962 by the Commissioner requiringthe Secretary that he may file an application under Section 63(b) ofthe H.R. & C.E. Act 1959 before the Deputy Commissioner, H.R. & C.E.,Madras. So, this is what they did and they filed O.A.No.101 of 1963.In the petition filed under Section 63(b) of the Act, they havestated that the Temple and its affairs are under the sole andexclusive management of the petitioner-Sabha and that the petitioner,as the founder of the Temple prayed to declare that the petitionerSabha is the hereditary Trustee. https://hcservices.ecourts.gov.in/hcservices/

8. On 21.3.1964, in a detailed order and after consideringExs.A.1 to A.3, which are the documents marked by the appellant andthe Court Exhibit, which is the report of the Inspector, H.R. & C.E.,Madras Circle III, and on hearing the evidence of P.W.1, who was thethen Secretary of the Sabha and the Court witness, viz., theInspector, H.R. & C.E., the Deputy Commissioner was satisfied thatthe appellant Sabha was the founder of the Temple and that themembers of the Managing Committee were the Trustees of the temple,who are in management of the temple at present and therefore, hedeclared that the Dharmaparipalana Sabha, Adyar, represented by itsSecretary, is holding the office of the trusteeship hereditarily. On20.9.2008, the Member Secretary issued an order referring to theearlier order dated 21.3.1964 by which the hereditary Trustee to thetemple was declared, and since the present Secretary was elected asthe Secretary in the Annual General Meeting held on 18.5.2008, theDepartment recorded his name as the hereditary Trustee and therefore,the Deputy Commissioner/Executive Officer of Arulmigu ParthasarathySwamy Temple, Thiruvallikkeni, who was then administering the Affairsof the Temple as Ex-Officio Fit Person, was directed to hand over allthe charges of the said temple to the Hereditary Trustee and reportthe same. This was duly done. Therefore, the earlier order in 1964was in effect confirmed by the Commissioner. 9. Within two months thereafter, the impugned order was issued,wherein the respondents have stated that in view of the judgment inthe case of Vedantha Sthapna Sabha, unless the succession anddevolution is by any one of the three modes of succession, alegitimate claim as hereditary trustee cannot be made. Therefore,since in the case of the temple in question, such mode of successionis not governed by any of the three modes, the Sabha cannot claim tobe the hereditary trustee. So the present "Sabha" cannot claim to bethe founder of the Temple and much less to be declared as hereditaryTrusteee and in view of the above legal position, Dharma ParipalanaSabha, Adyar, cannot claim to be the founder of the templeexclusively.10. Though this impugned notice indicates that the enquiry willbe held on 24.11.2008 to decide "whether the order in question shouldnot be revised under Section 69(2) of the Tamil Nadu H.R. & C.E. Act,1959, it is clear as contended by the learned Senior Counselappearing for the appellant that the Member Secretary, in fact,decided that the appellant cannot be the hereditary Trustee, andtherefore, the notice calling upon the appellant for enquiry wasindeed an empty formality.11.Though Section 69(2) does not provide for any time limit, weare not sure that the powers of suo motu revision can be easilyexercised after a period of four decades except for very justifiableand compelling reasons, which warrants such drastic exercise of suomotu power of revision. https://hcservices.ecourts.gov.in/hcservices/

12. The impugned show cause notice does not indicate any otherreason for invoking the power of suo motu revision except thejudgment of the Supreme Court reported in 2004 (3) CTC 536(Commissioner, H.R. & C.E. (Administration) v. Vedantha SthapnaSabha. In the above case, the Supreme Court, on facts, found thatthere was no hereditary trustee. It is different here, On20.9.2008, the respondent had recognised the newly elected Secretaryas the hereditary trustee in view of the order passed in 1964 wherethe first order was passed. So in effect, the respondent hadconfirmed the earlier order. If so, he cannot suo motu revise thefirst order having himself confirmed it. In fact, the Supreme Courtsaid that "it really does not call for our decision to determine thequestion as to whether the Sabha could get itself declared as'Hereditary Trustee' under the provisions of the Act."13. The definition of trustee under Section 6(22) of the Actshows that a body by whatever designation can be the trustee if theadministration of a Temple is vested in it. A hereditary trustee isone as seen from Section 6(11) where such trusteeship a) devolves by hereditary right, or b) is regulated by usage, orc) is provided for by the founder as long as Scheme is in force.It is the Government, which has the powers of suo motu revision overthe order passed by the Commissioner under Section 114. 14. An almost identical case was decided by a learned singleJudge of this Court in 1989 T.L.N.J. 68 [R. Velayuthaswami vs. TheCommissioner for Hindu Religious and Charitable EndowmentsAdministration Department]. In that case, by an order of the year1944, the then H.R. & C.E. Board allowed the application for adeclaration that the petitioner-Madam is neither a temple nor a Muttas defined in Act 2 of 1927. This order became final. It was soughtto be reopened in the year 1957, but this application was dismissedby the Deputy Commissioner, H.R. & C.E. Again, in the year 1977, theDeputy Commissioner initiated proceedings under Section 63A of the1951 Act. By order dated 19.7.1978, it was again held that thepetitioner-Madam is not a religious institution as defined under theprovisions of the Act. This order was forwarded to the Commissionerin terms of Section 68 of the Act. The Commissioner examined theorder and held that there was no illegality and lodged the matterstating that no further action was necessary. In the year 1982,notice was issued by the Deputy Commissioner proposing to suo motureopen the order passed in the year 1978, under the powers vested inhim under Section 69(2) of the Act. The learned single Judge heldthat Section 68 of the Act vests the powers in the DeputyCommissioner to enquire into and decide whether an institution is areligious institution. Under Section 69(2) of the Act, any orderpassed by the Deputy Commissioner in respect of which no appeal has https://hcservices.ecourts.gov.in/hcservices/ been preferred within the specified time may be revised suo motu, butthat since the Commissioner had already exercised his power statingthat there was no need to revise the order, the powers under Section69(2) of the Act had already been exercised without any change incircumstances, the very same order cannot be reopened purportedlyunder Section 69(2) of the Act. This is the sum and substance of theorder of the learned single Judge. 15. In the present case, as early as 1962, the application underSection 63(b) was filed and the Deputy Commissioner declared theappellant as the 'hereditary trustee'. When the new Secretary tookcharge, the Commissioner had in view of the declaration of theappellant as hereditary trustee and in confirmation thereof, recordedthe name of the present Secretary on 20.9.2008. Even on that day,this decision Vedantha Sthapna Sabha was in vogue. We do not see anychange of circumstances between 20.9.2008 and 24.11.2008, the dateof the impugned order. Under Section 69(2), now he cannot revise the1962 order when he has impliedly approved of it by the order dated20.9.2008.16. Therefore, the impugned notice is bad, because a) therespondent has prejudged the issue making the enquiry an emptyformality, and b) the impugned order is issued without jurisdiction.17. For the above reasons, the writ petition is allowed. Theimpugned order dated 19.12.2008 made in W.P.No.30115 of 2008 is setaside. Accordingly, the writ appeal is also allowed. No costs.Consequently, M.P.No.1 of 2009 is closed.Sd/Asst.Registrar/true copy/Sub Asst.Registrargs.ToThe Commissioner,Hindu Religious and Charitable Endowments (Admn.) Dept.,Nungambakkam High Road, Chenna-34.1 cc To M/s. Muthumani Doraisami, Advocate, SR.352721 cc To The Government Pleader, SR.33419Writ Appeal No.76 of 2009VSN(CO)SRA(19/08/2009)