T.E. Vijayaraghavan v. HR&CE Administration Department

counsel appearing for the fourth respondent in both the writpetitions, Mr.S.Parthasarathy, learned Senior Counsel appearing forthe sixth respondent in both the writ petitions, Mr.K.Vamanan,learned counsel appearing for the seventh respondent in both the writpetitions and Mr.T.C.A.Srinivasan, learned counsel appearing for theeighth respondent in both the writ petitions.4. Sri Devaraja Swamy temple at Kancheepuram is one of the mostancient temples of South India, though the early history of thetemple is involved, as stated by a Division Bench of this Court, inmuch obscurity. It is considered to be one of the 108 "Divya Desas"by some of the followers of Sri Vaishnavism. Though Sri Vaishnavism,as propagated, postulated and popularised by one of the greatestSaints of all times by name Sri Ramanujacharya, is firmly rooted in"eternal love", the two schools of Vaishnavism viz., "Thengalais" and"Vadagalais" plunged some of the ancient and holy shrines into"eternal litigation". Sri Devaraja Swamy temple of Kancheepuram isone such temple, described by a Division Bench of this Court way backin 1912 as a source of constant and bitter litigation. 5. The history of litigation in this temple, which may providean interesting case study for a student of law, may be stated in anutshell as follows:-(i) It appears that towards the close of the 17th Century, theidol of Lord Varadaraja Swamy was removed from Kancheepuram and takento Udayarpalayam, with a view to protect it from a possible threat ofinvasion. However, one Athan Thiruvenkata Ramanuja Jeer, who belongedto the Thengalai sect, brought the idol back to Kancheepuram in 1710A.D., with the aid provided by the Nawab of Hyderabad. Interestingly,Lord Varadaraja Swamy remained peaceful at Udayarpalayam, perhaps dueto the fact that the word "Udayar" from which the word "Udayavar" isderived also denotes Sri Ramanuja. From the time the idol was broughtback to Kancheepuram, the warring groups of devotees have dragged theLord into ever so many disputes. It appears that after the idol wasbrought to Kancheepuram, the localites known as Sthalasthars and oneLala Thodar Maulji, a Chieftain of the Mohemmedan Prince by nameSadulla Khan, conferred the right of management on the said AthanJeer. This enabled the Thengalais to gain the right of management ofthe temple, till the end of the 18th century.(ii) However, the last of the trustees of the Thengalai sect (ofthe 18th century) by name Rama Row was dismissed by the Government,when the Government's attention was invited to the seriousdifferences between the two sects. Interestingly, Rama Row wasconsidered to be a descendant of Ramanuja Jeer, who belonged to theThengalai sect and whose ancestor Attan Jeer brought back the idol toKancheepuram. However, the Vadagalais claimed that Rama Row was aclerk appointed by them. There was also a theory that Ramanuja Jeer(predecessor of Rama Row) got the trusteeship from the family ofTodur Mall, which got it from Sthalathars (localites). https://hcservices.ecourts.gov.in/hcservices/ (iii) After the dismissal of Rama Row, one SrinivasaRaghavachari was appointed by the Board of Revenue, but he was alsodismissed in 1796. From 1796, the temple continued under themanagement of the Government till 1842.(iv) In 1842, the Government decided to disconnect itself fromthe management of religious institutions in the country, in pursuanceof the orders of the Court of Directors. At that time, 3 sets ofpersons viz., (i) the descendants of Attan jeer (ii) the Sthalatharsand (iii) the Thathachars, staked claim to the management andadministration of the temple. The Collector proposed a Board ofTrustees comprising of (i) the head of the Thathachar family (ii) anArchaka (iii) a Paricharaka (iv) a descendant of Rama Row and (v) amember of Arulappad. (v) However, the Board of Revenue opined that the appointment ofa plurality of trustees was undesirable and hence recommended theappointment of one Kumara Thathachariar, the head of the Thathacharfamily to be the sole hereditary trustee. The Government of Madrasconfirmed the proceedings of the Board of Revenue and issued an orderappointing him as, what is described as "Churchwardenship".(vi) Though the proceedings of the Board of Revenue and theorder of the Government did not bear an intention to appoint KumaraThathachariar, on behalf of his family, he nevertheless entered intoan agreement on 9.2.1843 with the members of his family, with theprofessed object of preventing future disputes and for saving themirasi office from ruin.(vii) Though the above agreement maintained peace for some time,among the members of the family of Thathachars, a suit in O.S.No.5 of1844 came to be instituted in the Zillah Court of Chinglepet, by AppaRow, whose claim for trusteeship had been earlier rejected by theGovernment. The suit was dismissed and the dismissal was confirmed bythe Court of Sadr Adalat in Appeal No.29 of 1849.(viii) After the dismissal of the claims by Appa Row, a set ofrules were framed by the members of the family of Thathachars,recognising the common rights of all the members of the family andplacing all the Dharma-kartas on an equal footing. Subsequently, atenure of office was also fixed and fresh agreements came to beexecuted.(ix) However, the respect that all those agreements claimed, wasonly short lived. As the Vampire(vethalam) in the story ofVikramaditya, would often return to its tree, the members of thegroup of families of the Thathachars again went back to a litigativemood and a suit in O.S.No.11 of 1907 came to be instituted in theDistrict Court of Chinglepet, under Section 539 of the Code of CivilProcedure, 1882, for framing a scheme for the administration of thetemple. Allegations of non-feasance, misfeasance and malfeasance weremade against the trustees. The District Judge settled a scheme https://hcservices.ecourts.gov.in/hcservices/ providing just for periodical stock taking, for the receipt andcustody of the offerings and the income of the temple and for theaudit of accounts and certain other matters. However, the DistrictJudge refused to frame any rules for the election of trustees,appointment of mediators and for filling up vacancies in the officeof the trustee. (x) Not satisfied with the scheme framed by the District Judge,an appeal was filed in A.S.No.212 of 1909 on the file of this Courtand the defendants also filed objections to the judgment of theDistrict Court. During the pendency of the appeal, disputes becameserious, leading to the appointment of a Receiver. Several personsrepresenting the Thengalai sect and the Sthalathars of the temple,sought to implead themselves in the appeal on the ground that theyhad instituted independent suits for the settlement of a scheme andthat all those disputes could be resolved at one stop shop byimpleading them in the appeal.. A Division Bench of this Courtcomprising of Abdul Rahim and Sundaram Ayyar, JJ., allowed theimpleadment of those two groups of persons and considered twoprincipal issues, which are as follows:-(a) Whether the family of defendants 1 to 5 was entitled to theexclusive right of trusteeship ?(b) Whether additional trustees should be appointed to put anend to the constant and recurring quarrels and litigation connectedwith the temple and to put the administration of its affairs on asatisfactory footing ?(xi)In its decision rendered on 26.4.1912 {K.A.VeeraraghavaThathachariar vs. T.Srinivasa Thathachariar – (1912) 23 MLJ 134}, theDivision Bench held on the first issue that the alleged exclusiveright of the family of defendants 1 to 5, if it ever existed, wasextinguished by the statute of limitation. The Bench pointed out thatthe title of the family was not an ancient title, but one derived, ifat all, only under the order of the Government made in 1842. TheBench also observed that they were averse to the creation of anyhereditary right to the office of a public trustee, as such a coursewould not be in the interests of the institution. On the secondissue, it was held that the Court had the power, if it considered itdesirable, to appoint additional trustees. However, in thecircumstances of the case, the Division Bench held it unnecessary andundesirable to appoint any additional trustees, either from amongstthe Thengalai sect or from amongst the Sthalathars. The Bench opinedthat the appointment of a Thengalai as trustee may not promoteharmony in the management of the temple and that one or twoThengalais may not be likely to control the actions of the Vadagalaitrustees, though it might lead to constant opposition and mutualrecrimination. The Bench also rejected the claim of Sthalathars, onthe ground that they were only the servants of the temple. https://hcservices.ecourts.gov.in/hcservices/ (xii) However, the Division Bench also opined, having regard tothe past management of the temple, that it was desirable to providesome authorities to supervise the administration by the trustees. TheBench found that the members of the Thengalai sect held offices inthe temple and also possessed important interests such as (i) toaddress the invocation before the recitation of the Prabandham orTiruvaimozhi to Saint Manavala Maamuni (ii) the right to Adhyapakamoffice (iii) the right to a good proportion of the Thirtham offices(iv) the right of Asirvartham and (v) the right to the office ofMulji Dharmakarta. Interestingly, each of these rights had also ledto separate series of litigation. While the right to Adhyapakamoffice was decided in Krishnaswami Thathachar vs. Krishnamachar {1882ILR 5 Mad. 313}, the dispute relating to the type of the mark to bepainted on the forehead, known as "Namam", was decided inKrishnaswami Iyengar vs. Samaram Srirangachariar {1906 ILR 30 Mad.158}. Each of those litigations,is a history by itself, but we areconcerned in this case, only with the dispute relating to framing ofscheme.(xiii) In short, in its decision dated 26.4.1912, ((1912) 23MLJ 134) the Division Bench summarised the reasons for appointinga Supervisory Board, on the following lines:"The documents filed in the case clearly showthat there is bitter enmity between the membersof the Thengalai and Vadagalai communities in theplace and each community has manifested a mostreprehensible amount of unwillingness torecognise the just claims of the other communityand of office holders belonging to it. We havetherefore considered it desirable in appointing aBoard of Supervision to provide that one of themembers of the Board should be a Thengalaigentleman not holding any office in the temple"(xiv) Though the Bench refrained from adjudicating on theallegations of misconduct on the part of the trustees, the Benchnoted that "there can be no doubt that the history of the temple isone of incapacity, indifference and disharmony among the trustees".Therefore, while framing a scheme, the Division Bench provided forthe appointment of a Board of Supervision for the Devasthanam(different from the Board of Trustees), comprising of 3 members (i)one Vadagalai Vaishnava who is not a member of the Thathachari family(ii) one Thengalai Vaishnava and (iii) one Smartha or Madhwa. (xv) The scheme framed by this Court in the aforesaid decision{(1912) 23 Mad. 134}, provided for the appointment of 5 trustees, 3of whom shall be the members of the Eastern Branch and 2 shall befrom the Western Branch of the family of Koti Kanyakadanam SriThathadesikar. The scheme envisaged the tenure of office of thetrustees as 5 years and provided for the appointment of one of themby rotation as Executive Trustee for a period of one year, so that https://hcservices.ecourts.gov.in/hcservices/ all the 5 will hold office for one year each,during their tenure.However, the Board of Supervision was entrusted with the powers ofsupervision over the trustees.(xvi) The scheme settled by the Division Bench in the year 1912,in the aforesaid decision {K.A.Veeraraghava Thathachariar vs.Srinivasa Thathachariar}, also did not last for long, as a fresh suitfor modifying the same was filed in O.S.No.1 of 1928 by T.A.KrishnamaChariar and Others on the file of the District Court, Chinglepet. Bythe time the said suit was filed, the Madras Hindu Religious andCharitable Endowments Act, 1927, had come into force. Therefore, theBoard was added as the 36th defendant in the suit. By a judgment anddecree dated 21.12.1933, the District Court, Chinglepet held that theexisting scheme {as framed by the Division Bench in the aforesaiddecision in 23 MLJ 134} was not working satisfactorily. The DistrictJudge decreed a modification, to the extent that the Board ofSupervision appointed by the existing scheme would no longer benecessary and that the powers of supervision conferred on that Boardstood vested by statute upon the Hindu Religious Endowments Board.But this decision of the District Court, Chinglepet, became thesubject matter of challenge in A.S.No.175 of 1934 on the file of thisCourt. (xvii) After the aforesaid decision of the District Court,Chinglepet, in O.S.No.1 of 1928, the Hindu Religious Endowments Boardpassed an order, declaring the temple to be an excepted temple on theground that the right of succession to the office of trustee had beenhereditary. That order of the Endowments Board was challenged inO.P.No.8 of 1940, on the file of the District Court, Chinglepet, byT.V.Bashyakar and others. But the District Judge upheld the order ofthe Board that the temple is an excepted temple. While ordering so,Mr.P.N.Ramaswamy, the District Judge, Chinglepet (who later became aJudge of this Court) made an interesting observation which reads asfollows:-"The scheme framed by the High Court withsuch full patience and labour has unfortunatelyproved to be an unqualified failure. The schemehad to be worked, not by reasonable people, in aspirit of compromise but by veteran litigantsconsistently described by all persons who havehad to decide those matters as being, "inspiredby Sectarian rivalry and animosity", to whomevery judgment of the District Court has beenonly a furlong stone and every Judgment of theHigh Court has been only a mile stone in thelong road of litigation the end of which no onecan see".(xviii) However, the order of the District Judge, Chinglepet, inO.P.No.8 of 1940 was set aside by a Division Bench comprising ofWadsworth and Patanjali Sastri, JJ., in T.V.Bashyakar and others vs.The Madras Hindu Religious Endowments Board {1941 (1) MLJ 250}. It https://hcservices.ecourts.gov.in/hcservices/ was held by the Division Bench that this temple is not a temple, thesuccession to the trusteeship whereof is hereditary. The DivisionBench also declared the temple to be a non-excepted temple. (xix) After disposing of the appeal and revision arising out ofO.P.No.8 of 1940 in the manner aforesaid, the very same DivisionBench comprising of Wadsworth and Patanjali Sastri, JJ., heard theappeal A.S.No.175 of 1934, arising out of the modification of thescheme decreed in O.S.No.1 of 1928 by the District Judge, Chinglepet.By a judgment dated 17.1.1941, the Division Bench held that the thenexisting scheme required considerably more modification than what wasthought sufficient by the District Judge. In their judgment, theDivision Bench made a prophetic observation which reads as follows:-"Doubtless such of the troubles weredue to the quarrels between Thengalais andVadagalais and to factious strife betweendifferent subdivision of the main sects. Butthese quarrels are no new thing nor are theylikely to disappear in the near future, andscheme which does not have regard to thistendency to faction and which does notendeavour to safeguard the templeadministration, from its effects, is not asuitable scheme for this particularinstitution, whatever its merits in theabstract."Ultimately, the Bench provided for the appointment of only 2 honorarytrustees (instead of 5), who were to be elected by and from thelineal male descendants of Sri Thatha Desikar and one ExecutiveTrustee, who should be a Smartha or Madhwa Brahmin to be appointed bythe Hindu Religious Endowments Board. (xx) Till a modified scheme was put in place by the DivisionBench in the above decision A.S.No.175 of 1934, the disputes wereconfined either (i) to the different branches of the family ofThathachars or (ii) between the Thathachars and the Thengalais or(iii) between Thathachars, Thengalais and Sthalathars. But after thecreation of the Endowments Board by statute, they also jumped intothe arena, adding a fourth dimension to the disputes, though the roleof the Board (now a Department of the State), is to provide anefficient administration and to maintain peace and harmony. As amatter of fact, the fight between the two factions (Thengalais andVadagalais) for the past nearly 50 years (from 1961), revolves aroundthe various proceedings initiated by the Department.(xxi) After the advent of the Madras Hindu Religious andCharitable Endowments Act XXII of 1959, the Deputy Commissionerinitiated proceedings in O.A.No.99 of 1961, for amending the schemeso as to bring it in accord with the provisions of the Act.Challenging the said proceedings, initiated under Section 64(5) of https://hcservices.ecourts.gov.in/hcservices/ the Act, R.Thatha Desika Thathachariar filed a writ petition inW.P.No.2468 of 1969. But the writ petition was dismissed byAlagiriswami, J., on 18.8.1969. The appeal was also dismissed by aDivision Bench comprising of K.Veeraswami, Chief Justice andP.R.Gokula Krishnan, J. {1970 (2) MLJ 475}. The decision wasconfirmed by the Supreme Court.(xxii) However, as if to make the love's labour lost, theproceedings initiated in O.A.No.99 of 1961 were dropped by the DeputyCommissioner, HR&CE, on 8.10.1973, after perhaps enjoying the fun oflitigation. Interestingly, he dropped the proceedings on the groundthat he had no jurisdiction to modify the scheme. Therefore, theorder of the Deputy Commissioner was challenged before theCommissioner, by way of a statutory appeal in A.P.No.153 of 1974. TheCommissioner set aside the order of the Deputy Commissioner dated8.10.1973 and remitted the matter back to him for freshconsideration. (xxiii) The Deputy Commissioner initiated a fresh enquiry, afterrenumbering the proceedings as O.A.No.95 of 1978. After hearing theparties and considering their contentions and statements, the DeputyCommissioner issued a notice dated 25.6.1982, proposing to modify theexisting scheme, as per the Draft Modified Scheme annexed to thenotice. As per the Draft Modified Scheme, proposed by the DeputyCommissioner, the administration of the temple was to vest in a Boardof Trustees. The Board was to comprise of 5 trustees, with one fromThathacharis, one from the Thengalai sect, one non-BrahminVaishnavaite, one Smartha or Madhwa Brahmin and one Harijan. TheBoard was also to have an Executive Officer appointed in accordancewith the provisions of the Act. (xxiv) Challenging the Draft Modified Scheme and the noticedated 25.6.1982, issued by the Deputy Commissioner, oneT.Lakshmikumara Thathachariar filed a writ petition in W.P.No.5121 of1982. He belonged to the Eastern Branch of Sri Koti KanyakadanamThathadesikar family. The writ petition was dismissed.(xxv) Aggrieved by the dismissal of the writ petition,T.Lakshmikumara Thathachariar filed an appeal in W.A.No.122 of 1987.He also filed a writ petition in W.P.No.2082 of 1987 challenging thevires of Section 64 (5) and 118 of the Tamilnadu Hindu Religious andCharitable Endowments Act, 1959. After the dismissal of that writpetition, he filed an appeal in W.A.No.141 of 1987. Both the appealsviz., W.A.No.122 of 1987 and 141 of 1987 were dismissed by theDivision Bench. The appeals arising out of the same in C.A.Nos.4570and 4571 of 1998 also met with the same fate, when the Supreme Courtdismissed them on 2.9.1998. (xxvi) Thus the challenge to the Draft Modified Scheme issued bythe Deputy Deputy Commissioner in O.A.No.95 of 1978, on 25.6.1982,failed ultimately with the dismissal of the Civil Appeals by theSupreme Court in September 1998. It must be remembered at this https://hcservices.ecourts.gov.in/hcservices/ juncture that O.A.No.95 of 1978 was actually initiated in the year1961 in O.A.No.99 of 1961 and got renumbered after remand in thefirst round by the Commissioner. (xxvii) Despite the challenge to the Draft Modified Scheme,having been rejected by a single Judge, by the Division Bench and bythe Supreme Court, the Deputy Commissioner abandoned the furtherproceedings. Instead, the Joint Commissioner initiated freshproceedings suo motu, in O.A.No.21 of 1999, invited objections andpassed an order on 11.6.2003, notifying another Draft Modified Schemeand inviting objections and suggestions thereto. (xxviii) Aggrieved by these proceedings, the petitioners havecome up with the present writ petitions. As stated earlier, thechallenge in one writ petition is to the fresh proceedings dated11.6.2003 in O.A.No.21 of 1999. In the other writ petition, theprayer is for passing final orders in the previous proceedings inO.A.No.95 of 1978, whereby a Draft Modified Scheme was notified on25.6.1982.6. By the modified scheme now proposed by the Joint Commissionerin his suo motu proceedings O.P.No.21 of 1999, as notified in hisorder dated 11.6.2003, which is the subject matter of challenge inone writ petition, the Joint Commissioner has proposed that thereshall be 3 non-hereditary trustees, apart from an Executive Officerappointed by the Government in the cadre of Assistant Commissioner inthe HR&CE Department. As per the proposed scheme, 2 out of the 3 non-hereditary trustees, shall be from the Eastern Branch and 1 from theWestern Branch of the male descendants of Koti Kanyakadanam ThathaDesikar. Consequently, there will be no representation for theThengalai sect in the Board of Trustees. Therefore, the petitioners,who belong to the Thengalai sect, have come up with these writpetitions.7. The main plank of the argument of Mr.K.Alagiriswami, learnedSenior Counsel for the petitioners is that after the challenge to thepreviously proposed scheme in O.A.No.99 of 1961 (which later becameO.A.No.95 of 1978), failed before the single Judge, the DivisionBench and the Supreme Court, after a prolonged battle for 37 years(from 1961 to 1998), it was wholly illegal and unjustified on thepart of the Joint Commissioner to drop the earlier proposal andinitiate a proceeding suo motu. Moreover, the proposal now made, isalso not in accordance with the statutory provisions, though theimpugned order claims to be so. 8. In response, Mr.S.Balasubramaniam, learned counsel for thecontesting respondent, submitted that as against the impugned order,a statutory alternative remedy of appeal is available and hence thewrit petition, bye passing the alternative remedy, is notmaintainable. It is his further contention that immediately after theJoint Commissioner initiated suo motu proceedings in O.A.No.21 of1999, the writ petitioners herein moved two applications before the https://hcservices.ecourts.gov.in/hcservices/ Supreme Court, seeking (i) a direction to the Deputy Commissioner tocomplete the proceedings in O.A.No.95 of 1978 and (ii) a direction tothe Joint Commissioner not to proceed with the fresh suo motuproceedings in O.A.No.21 of 1999. But those applications weredismissed by the Supreme Court on 13.11.2000. Therefore, according tothe learned counsel for the contesting respondent, the present writpetitions for the very same reliefs, are not maintainable.9. Since a question of maintainability of the writ petitions hasbeen raised, I shall deal with the same first, before considering thewrit petitions on merits. 10. It is true that the writ petitioners have a statutoryalternative remedy of appeal available under Section 69 (1) of theTamil Nadu Hindu Religious and Charitable Endowments Act, 1959. Asagainst an order passed under Section 69, the petitioners also havethe remedy of a suit under Section 70 (1) and a right of first appealto this Court under Section 70 (2). Therefore, under normalcircumstances, the petitioners should only be directed to avail thealternative remedy.11. But the case on hand is not of the normal variety. Theparties herein and their predecessors are more seasoned in litigationthan any of the lawyers who represented them. As observed by thelearned Subordinate Judge, Chinglepet, in O.S.No.30 of 1956, everytime one controversy is attempted to be resolved by a judicialdecision, another controversy arises as a sphinx from its ashes, tokeep the flame of litigation burning for ever. The Thengalais andVadagalais have fought in various Courts, including the Privy Counciland the Supreme Court, for over two centuries, at least on 5 issuesviz., (i) the trusteeship (ii) the type of Namam (mark on theforehead) to be applied (iii) the Adhyapakam rights (iv) the right toThirtham and (v) the right to the office of Mulji Dharmakarta. Thehistory of litigation relating to Adhyapaka rights and Namam, spreadover two centuries. To my mind, the litigation involving SriDevarajaswami Temple of Kancheepuram, is the only one of its kind inthe whole world, that enabled Mr.T.S.Ramaswamy, a Senior member ofthe Madras Bar, to undertake a research, facilitating him ultimatelyto acquire a Doctorate (Ph.D) degree on "Judicial Resolutions forTemple Disputes", which has also come out in the form of a book.Therefore, the ordinary dictat of the writ Court to ask the partiesto avail the alternative remedy, need not be invoked in anextraordinary case of this nature. 12. Moreover, the writ petitions were admitted way back in theyear 2003, the pleadings are complete and arguments were heard atlength, in the final hearing of the writ petitions. It is wellsettled that at the stage of final hearing, parties need not bedriven out of Court, to take recourse to alternative remedies. 13. In any case, the impugned scheme is attacked only on twolegal grounds. The first ground is that there was no justification https://hcservices.ecourts.gov.in/hcservices/ for dropping further proceedings under the earlier scheme proposed inO.A.No.99 of 1961 (which later became O.A.No.95 of 1978). The secondground is that though the impugned order has been issued with theprofessed object of bringing the scheme in tune with the Act, it isnot so, as seen from the proposed constitution of the Board ofTrustees. I find from the history of the litigation and the factsalready on record that these two issues can easily be decided inthese writ petitions and hence it is not necessary to ask thepetitioners to avail the alternative remedy, after 6 years of thefiling of the writ petitions. 14. Interestingly, when the Deputy Commissioner initiatedsimilar suo motu proceedings in the year 1961, for modification ofthe scheme, the contesting respondents herein challenged the sameonly by way of a writ petition in the year 1969. The writ petitionwas dismissed and the same was confirmed by the Division Bench andalso by the Supreme Court. Thereafter, those suo motu proceedings inO.A.No.99 of 1961 were sought to be abandoned, but at the instance ofthe writ petitioners, the Commissioner remanded the matter back.Thereafter, they were renumbered as O.A.No.95 of 1978. But theseproceedings were again challenged, only by way of a writ petition, bythe contesting respondents herein. The writ petition W.P.No.5121 of1982 was dismissed and the dismissal was confirmed by the DivisionBench and by the Supreme Court. Thus, the contesting respondentsherein, have, in the past always bye-passed the alternative remedyand challenged identical proceedings, only by way of writ petitions.Therefore, the contention of the contesting respondents regarding theavailability of alternative remedy, is nothing but a case of potcalling the kettle black. Hence, the same is rejected. 15. Mr.S.Balasubramaniam, learned counsel for the secondrespondent, questioned the maintainability of the writ petitions alsoon the ground that after having participated in the suo motuproceedings before the Joint Commissioner in O.A.No.21 of 1999, it isnot open to the petitioners to challenge the very initiation of theproceedings. The learned counsel relied upon a decision of a DivisionBench of this Court in P.Vidhyavathi vs. The Chairman, TNPSC {1991(1) LW 46}, in support of his contention that a person whoparticipates in the proceedings, is barred by acquiescence fromchallenging the validity of the proceedings. I am afraid, neither thesaid decision nor the principle laid down therein, has anyapplication to the cases on hand. Vidyavathi's case arose out of aprocess of selection for recruitment to the post of District Munsif.It cannot be compared to the disputes with which we are nowconcerned. The petitioners are not challenging the initiation of suomotu proceedings, on the ground of lack of jurisdiction. If thechallenge of the petitioners, was on the ground of jurisdiction, itmay be open to the respondents to contend that the petitioners havesubmitted themselves to the jurisdiction of the official respondent.Even in such a case, the law is well settled that by consent, theparties cannot confer jurisdiction. The petitioners have challengedthe suo motu initiation of proceedings on the ground that the https://hcservices.ecourts.gov.in/hcservices/ previous proposed modified scheme, ought not to have been abandoned.Such a challenge does not get extinguished, by the petitionersparticipating in the proceedings. The proceedings before the JointCommissioner, were under Section 64(5) and are quasi judicial innature. Therefore, the participation of the petitioners in thoseproceedings, would not take away their rights to challenge thoseproceedings. 16. The next objection of Mr.S.Balasubramaniam, learned counselfor the second respondent, is that the Supreme Court had alreadyrejected the challenge of the petitioners, to the very sameproceedings and that therefore, the petitioners cannot reopen theissue all over again. This contention also cannot be countenanced,for the reasons stated in the following paragraph.17. As seen from the history of the litigation, after the adventof the Madras Act XXII of 1959, the Deputy Commissioner initiatedproceedings in O.A.No.99 of 1961. The Thathacharis challenged thesame in W.P.No.2469 of 1969. The writ petition was dismissed on18.8.1969 and the appeal W.A.No.91 of 1970 was dismissed on 6.9.1970.The Special Leave Petition was dismissed on 22.10.1971. However, theDeputy Commissioner dropped further proceedings in O.A.No.99 of 1961by order dated 8.10.1973. But the Commissioner set aside that orderon an appeal in A.P.No.153 of 1974 and remanded the matter back. Theproceedings were renumbered as O.A.No.95 of 1978, in which an orderwas passed on 25.6.1982, proposing to notify a modified scheme. Thatorder dated 25.6.1982 was challenged by Thathachars in W.P.No.5121 of1982. But the challenge failed and the appeal was also dismissed bythe Division Bench in W.A.No.122 of 1987. The Supreme Court confirmedthe same on 2.9.1998 {1998 (6) SCC 643}.18. It is only after the dismissal of the civil appealsC.A.Nos.4570 and 4571 of 1998 by the Supreme Court on 2.9.1998 thatthe impugned suo motu proceedings in O.A.No.21 of 1999 wereinitiated. Though the impugned suo motu proceedings provided anindependent and subsequent cause of action and though the civilappeals had long before been disposed of, the petitioners herein madean attempt to bring to the notice of the Supreme Court, theabandonment of the previous proceedings and the initiation of freshproceedings suo motu. The petitioners herein filed two interlocutoryapplications in I.A.Nos.3 and 4 of 2000 in Civil Appeal Nos.4570 and4571 of 1998. The prayers made therein were as follows:-"It is therefore most respectfullyprayed that this Hon'ble Court may bepleased to:a) direct Respondent No.2 to completethe pending proceedings in O.A. No.95 of1978, pending before him;b) direct Respondent No.2 not to takeany further steps in respect of suo-motuO.A.No.21 of 1999 initiated by him and to https://hcservices.ecourts.gov.in/hcservices/ quash the proceedings in the said suo-motuO.A. No.21 of 1999."19. On 13.11.2000, the Supreme Court dismissed the interlocutoryapplications by a short order which reads as follows:-"We do not find any justification forentertaining these I.As. The I.As areaccordingly dismissed."20. In view of the above order of the Supreme Court andespecially in view of the usage of the words "justification" and"entertaining", in the above order, Mr.S.Balasubramaniam, learnedcounsel contended that the present writ petitions are barred by resjudicata or at least the petitioners are estopped from raising theissue once again. The learned counsel cited a decision of Mrs.PrabhaSridevan, J., in M/s.Mahabaleswar Service Station vs. M/s.Indian OilCorporation Ltd {2002 (1) MLJ 497}, in support of his contention thatthe use of the word "entertain", would connote some thing more than amere dismissal. In response, Mr.K.Alagiriswamy, learned SeniorCounsel appearing for the petitioners, relied upon a decision of theConstitution Bench of the Supreme Court in The Samarth Transport Co.(P) Ltd vs. The Regional Transport Authority {1961 (1) SCR 631}, toshow as to how the word "entertain" is to be construed. 21. But with due respects to the learned counsel on either side,I am of the considered view that the order of the Supreme Courtextracted above, does not call for any interpretation on semantics.Time and again, the Apex Court has cautioned that the judgments ofCourts are not to be read and interpreted as Statutes. It is only inrespect of Statutes that the question of interpretation, for thepurpose of finding out the legislative intent would arise. In ajudgment, the findings of fact and conclusions arrived at, are forthe consumption of the parties to the litigation and the expositionof law is for the consumption of the Subordinate Courts and thepublic as well. The Apex Court has cautioned time and again thatdecisions are to be read as a whole and not to be split word by wordand sought to be interpreted. 22. In Bharat Petroleum Corporation Ltd vs. N.R.Vairamani {2004(8) SCC 579}, the Supreme Court held as follows:-"Judgments of Courts are not to beconstrued as statutes. To interpret words,phrases and provisions of a statute, it maybecome necessary for judges to embark intolengthy discussions but the discussion ismeant to explain and not to define. Judgesinterpret statutes, they do not interpretjudgments. They interpret words of statutes;their words are not to be interpreted asstatutes." https://hcservices.ecourts.gov.in/hcservices/

23. Keeping the above principles in mind, if we look at theorder of the Supreme Court, dismissing both the interlocutoryapplications, it will be clear that the Supreme Court did not expressany opinion on the merits of the claim of the petitioners. Thereasons for the dismissal were too obvious to be stated. First ofall, the civil appeals had already been disposed of on 2.9.1998 andnothing was pending before the Supreme Court, to enable the partiesto move any interlocutory application. The interlocutory applicationswere filed in May 2000 and moved in November 2000, more than after 2years of the disposal of the civil appeals. It is a settled positionin law that no relief can be granted to a party, after the disposalof the proceedings, by the very same Court, except by way of review.Moreover, what was sought to be agitated by way of interlocutoryapplications, after the disposal of the main cases, did not arise outof the appeals which were disposed of, but arose out of subsequentproceedings which provided an independent, separate and subsequentcause of action. Therefore, the interlocutory applications filed bythe petitioners herein, before the Supreme Court, in the appealsdisposed of 2 years earlier, were, without any semblance of a doubt,not maintainable. It is in that view that the Supreme Court dismissedthe applications, holding that there was no justification forentertaining the applications. Therefore, the same cannot operateeither as res judicata or as estoppel. 24. Now coming to the merits, the main ground of attack of thewrit petitioners to the impugned suo motu proceedings, is that afterallowing the parties to litigate over the proposal to modify theexisting scheme, from 1961 till 1998 and after this Court and theSupreme Court put the seal of approval on those proceedings, therewas no justification to abandon those proceedings and initiate afresh one. The ancillary ground of attack is that in any case, theproposed scheme is not in tune with the provisions of the Act, thoughthe professed object of the proposed scheme is to do so.25. In order to test the correctness of the above grounds ofattack, it is necessary to have a close look at the events thathappened subsequent to the dismissal of the civil appealsC.A.Nos.4570 and 4571 of 1998 on 2.9.1998. They are as follows:-(i) For a period of 1-1/2 years after the disposal of the civilappeals by the Supreme Court, the Joint Commissioner did not take anyaction in furtherance of the proceedings in O.A.No.95 of 1978. It isclaimed by the petitioners that they made requests and also issuednotices to the Joint Commissioner to pass final orders in thoseproceedings. (ii) However, the Joint Commissioner issued a notice dated9.3.2000, in suo motu O.A.No.21 of 1999. In paragraphs 1 to 4 of thesaid notice, the Joint Commissioner narrated the history of thelitigation and the judgments of this Court and the Supreme Court,upholding the power of the Deputy/Joint Commissioner to modify the https://hcservices.ecourts.gov.in/hcservices/ scheme. After doing so, the Joint Commissioner stated in paragraph-5of the said notice, three reasons for initiating suo motuproceedings. They are as follows:-"(a) that the provisions alreadycontained in the existing scheme, beinginconsistent with the provisions of theHR&CE, Act 1959 (Amended Act 39/96) areambiguous and therefore, cannot be workedout perfectly and properly.(b) that though the provisions of thescheme are ordinarily precise and completehad become unsuitable to carry out theintentions and objects of such provisions,in the present altered circumstances;(c) that the scheme settled andmodified by the Court, in the year 1941,itself had, by the test of time, in likemanner becomes necessary to be redraftedfor the purpose."(iii) In the aforesaid notice dated 9.3.2000, the JointCommissioner fixed a date for preliminary enquiry and called upon theparties to submit their objections. After the enquiry and afterconsidering the objections, the Joint Commissioner issued an orderdated 11.6.2003, notifying a draft modified scheme, subject toobjections and suggestions. It is at this stage that the petitionerscame up before this Court.26. A perusal of the first notice dated 9.3.2000, in the suomotu proceedings O.A.No.21 of 1999, shows that no reasons are statedby the Joint Commissioner, for not pursuing the previous proceedingsO.A.No.95 of 1978 (which was only a continuation of O.A.No.99 of1961), though the previous proceedings were also initiated only forthe purpose of bringing the scheme settled in 1941, in tune with the1959 Act. It is unfortunate that this is the third occasion when thedepartment has resorted to a game of hide and seek. First theyinitiated suo motu proceedings in 1961. After the validity of thoseproceedings were confirmed upto Supreme Court, they were abandoned in1973. Therefore an intra departmental appeal was filed in which thematter was remitted back and the proceedings started all over againfor a second time in O.A.No.95 of 1978. After the challenge to thoseproceedings failed upto the Supreme Court in the year 1998, they havebeen abandoned and the proceedings impugned in the present writpetitions were initiated. Thus, the department has added fuel to thefire of litigation at every stage. 27. When the professed object of initiating suo motu proceedingsin O.A.No.99 of 1961 and O.A.No.95 of 1978, was to bring the schemein tune with the provisions of the Act, there is no reason as to whythose proceedings should be abandoned and fresh proceedings initiatedfor the very same purpose. The impugned proceedings do not contain https://hcservices.ecourts.gov.in/hcservices/ even an apology of a reason, for abandoning further proceedings inO.A.No.95 of 1978, even after the Apex Court put its seal of approvalon the same. Therefore the impugned proceedings appear to be theproduct of an arbitrary exercise of power.28. It is not stated in the impugned proceedings that theproposed modified scheme made in O.A.No.95 of 1978 itself, was alsonot in tune with the provisions of the Act. In fact, the order dated25.6.1982, passed in O.A. No.95 of 1978, which became the subjectmatter of litigation upto the Supreme Court, was only a DraftModified Scheme. Therefore, after the dismissal of the civil appealsC.A.Nos.4570 and 4571 of 1998 on 2.9.1998, it was open to the JointCommissioner to consider the objections and pass a final order,consistent with the provisions of the Act. In other words, what issought to be achieved by the impugned proceedings, by going back tosquare one, as in the game of "snakes and ladder", could have beenachieved easily by considering the objections and passing finalorders in the previous proceedings O.A.No.95 of 1978. If that hadbeen done, a modified scheme could have now come into operation.Instead, the department has played spoil sport in the final stages ofthe previous proceedings by abandoning them. 29. As stated earlier, the Supreme Court disposed of the civilappeals on 2.9.1998. The Joint Commissioner abandoned the previousproceedings and initiated fresh proceedings in 1999 itself. If theJoint Commissioner had no intention of proceeding further with theprevious action, he could have at least informed the Court of thesame, so that an exercise in futility would not have been undertakenby the Court. 30. In any case, the draft scheme proposed by the order dated25.6.1982 in the previous proceedings O.A.No.95 of 1978 and the draftscheme now proposed by the impugned order dated 11.6.2003 inO.A.No.21 of 1999, are at variance, with regard to the constitutionof the Board of Trustees. Under the order dated 25.6.1982 inO.A.No.95 of 1978, the Trust Board was to have 5 members, comprisingof one Thathachari Trustee, one Thengalai Brahmin Trustee, one non-Brahmin Srivaishnavaite Trustee, one Smartha or Madhwa BrahminTrustee and one Scheduled Caste Trustee. 31. But under the order impugned in the writ petition, the TrustBoard is to have only 3 trustees, out of whom 2 should be from theThathacharis and one from Smartha or Madhwa Brahmins permanentlyresiding in Kancheepuram. This according to the Joint Commissioner isin tune with the provisions of the Act. However, the impugned orderdoes not disclose as to how the proposal made in the previousproceedings dated 25.6.1982 was not in accordance with the provisionsof the Act.32. Section 47(1)(a) of the Tamil Nadu Hindu Religious andCharitable Endowments Act, 1959, empowers the JointCommissioner/Deputy Commissioner, the Commissioner and the Government https://hcservices.ecourts.gov.in/hcservices/ to constitute a Board of Trustees for a religious institutionincluded in the list published under Section 46 (depending upon itsannual income) or in respect of a religious institution for which theAssistant Commissioner has no power to appoint Trustees and which hasno hereditary Trustee. The first proviso under Section 47(1)(a)mandates that the Board constituted by the Joint/Deputy Commissioneror the Commissioner shall consist of 3 persons, from among the panelof names sent by the District Committee, of whom one shall be amember of the Scheduled Castes or Scheduled Tribes. Section 47(1)(c)stipulates that every Board of Trustees constituted under Clause (a)or (b) shall consist of not less than 3 and not more than 5 persons,of whom, one shall be a member of the Scheduled Castes or ScheduledTribes. Section 47(2) empowers the Government, Commissioner, JointCommissioner or Deputy Commissioner to appoint one or more non-hereditary Trustees, in respect of an institution included in thelist and having a hereditary Trustee. 33. Section 49 confers similar powers upon the AssistantCommissioner to appoint Trustees, in respect of a religiousinstitution which is not included in the list published under Section46 and which is not a religious institution notified under Chapter-VI. The proviso under Section 49(1) requires such a Board to compriseof 3 persons from among the panel of names sent by the DistrictCommittee.34. Section 7-A of the Act, mandates the Government toconstitute a Committee called the District Committee for everyRevenue District, in respect of all religious institutions (otherthan those falling under Section 46(ii). The District Committee soconstituted is obliged under Section 7-A(4) to prepare a panel ofnames of persons, who are qualified for appointment as Trustees,including the members of the Scheduled Castes and Scheduled Tribes.But Sub Section (5) of Section 7-A excludes the jurisdiction of theDistrict Committee to send any panel of names for a religiousinstitution for which a scheme is settled by the High Court or anySubordinate Court.35. In the light of the provisions of Sections 47 and 7-A, itwas contended by Mr.K.Alagiriswami, learned Senior Counsel for thepetitioners that it is actually the present suo motu proceedings,which are inconsistent with the provisions of the Act, while theprevious proceedings O.A.No.95 of 1978 were in consonance with theAct. Though the previous proceedings contemplated a 5 member Board ofTrustees, of whom, one should be a member of the Scheduled Castes orScheduled Tribes, the present impugned order does not provide for theinclusion of a person belonging to the Scheduled Castes or ScheduledTribes. Therefore, it was contended that the present proceedings arenot in tune with the Act. But the said contention was resisted byMr.S.Balasubramaniam, learned counsel for the contesting respondenton the premise that when the very power of the Joint/DeputyCommissioner or Commissioner to appoint Trustees is confined underthe proviso to Section 47(1), to a list of persons sent by the https://hcservices.ecourts.gov.in/hcservices/ District Committee and when the power of the District Committee tosend a panel is curtailed by Section 7-A(5) in respect ofinstitutions for which a scheme is already settled, the proposal nowmade cannot be said to be inconsistent with the provisions of theAct.36. In order to test the correctness of the above contention, itis necessary to have a look at Sections 7-A and 47. Therefore theyare extracted as follows:-"Section 7-A. (1) In respect of allreligious institutions (other than thosereligious institutions falling under clause(ii) of Section 46) situated within theterritorial jurisdiction of a RevenueDistrict, the Government shall constitute aCommittee called the District Committeeconsisting of not less than three and notmore than five non-official members as maybe nominated by the Government. Only personswho are qualified for appointment astrustees under this Act shall be nominatedto the District Committee.(2) The term of office of the membersof the District Committee shall be threeyears and other matters relating to the saidCommittee shall be such as may beprescribed.(3) The Government, may after giving ashow cause notice, remove all or any of themembers of the District Committee in thepublic interest.(4) The District Committee shallprepare, in such manner as may beprescribed, a panel of names of persons whoare qualified for appointment as Trusteesunder this Act (including members ofScheduled Castes and Scheduled Tribes) andsuitable for appointment as non-hereditarytrustee or trustees, as the case may be andshall send it to -(i) the Joint or Deputy Commissioner,in respect of religious institutions fallingunder clause (i) of Section 46;(ii) the Commissioner in respect ofreligious institution falling under clause(ii) of Section 46; and(iii) the Assistant Commissioner inrespect of any religious institution whichis not included in the list published underSection 46 and is not a religiousinstitution notified or deemed to have been https://hcservices.ecourts.gov.in/hcservices/ notified under Chapter VI of this Act.(5) Notwithstanding anything containedin this Section, the District Committeeshall have no jurisdiction to send any panelof names of persons under this Section inrespect of any religious institution forwhich a scheme has been settled or deemed tohave been settled under this Act by the HighCourt or any Court subordinate to the HighCourt.""Section 47. (1)(a) Where a religiousinstitution included in the list publishedunder Section 46 or in respect of which theAssistant Commissioner has no power toappoint trustees, has no hereditarytrustee,-(i) in cases falling under clause (i)of Section 46 the Joint Commissioner/DeputyCommissioner;(ii) in the case of falling underclause (ii) of Section 46, the Commissioner;and (iii) in the case of falling underclause (iii) of Section 46, the Governmentshall constitute a Board of Trustees.Provided that the Board of Trusteesconstituted under items (i) and (ii) of theclause shall, subject to the provisions ofclause (c) consist of three personsappointed by the Joint Commissioner orDeputy Commissioner or the Commissioner, asthe case may be, from among the panel ofnames of persons, sent by the DistrictCommittee concerned under sub-section (4) ofSection 46-A, of whom one shall be a memberof the Scheduled Castes or Scheduled Tribes:Provided further that in addition tothe persons appointed by the JointCommissioner or Deputy Commissioner or theCommissioner under items (i) or (iii) ofthis clause, as the case may be, theGovernment may nominate two persons who arequalified for appointments as trustees underthis Act, as members of the said Board ofTrustees, having regard to the followingmatters, namely -(a) the interest of thepublic generally;(b) the income and theproperties of the religiousinstitution;(c) the number of https://hcservices.ecourts.gov.in/hcservices/ worshippers and importance ofthe religious institutions as apilgrim centre; and(d) such other matters asmay be prescribed.(b) in respect of all the incorporatedand unincorporated Devaswoms in thetransferred territory, the Government shallconstitute a single Board of Trustees;(c) Every Board of Trustees constitutedunder clause (a) or clause (b) shall consistof not less than three and not more thanfive persons of whom one shall be a memberof the Scheduled Castes or Scheduled Tribes:Provided that the Government, theCommissioner, the Joint Commissioner orDeputy Commissioner as the case may be, may,pending the constitution of such Board ofTrustees, under this sub-section, appoint afit person to perform the functions of theBoard of Trustees.Explanation: For the purpose of thissub-section "Scheduled Castes" and"Scheduled Tribes" shall have the samemeanings assigned to them respectively inclauses (24) and (25) of Article 366 ofConstitution.(2) Where in the case of anyinstitution included in the list publishedunder Section 46 having a hereditary trusteeor trustees, the Government, theCommissioner or the Joint Commissioner orthe Deputy Commissioner after notice to suchtrustee or trustees and after such enquiryas the Government, the Commissioner or theJoint Commissioner or the DeputyCommissioner as the case may be deemsadequate, considers for reasons to berecorded, that the affairs of theinstitution are not and or not likely to beproperly managed by the hereditary trusteeor trustees, the Government, theCommissioner or the Joint Commissioner orthe Deputy Commissioner may, by order,appoint a non-hereditary trustee or suchnumber of non-hereditary trustees, as may beconsidered necessary by the Government, theCommissioner, or the Joint Commissioner/Deputy Commissioner as the case may be.(3) Every trustee appointed under sub-section (1) and subject to result of anapplication, if any, filed under sub-section https://hcservices.ecourts.gov.in/hcservices/ (4), every non-hereditary trustee appointedunder sub-section (2) shall hold office fora term of three years, unless in themeanwhile the trustee is removed ordismissed or his resignation is accepted bythe Government, the Commissioner or theJoint Commissioner or the DeputyCommissioner as the case may be, or heotherwise ceases to be a trustee.(4) Where the Government, theCommissioner or the Joint Commissioner orthe Deputy Commissioner appoints a non-hereditary trustee or trustees, thehereditary trustee or trustees may, withinthirty days of the receipt of the order,file an application to the Court to setaside or modify such an order:Provided that the Court shall have nopower to stay the order of the Government,the Joint Commissioner or the DeputyCommissioner or the Commissioner as the casemay be, pending the disposal of theapplication."37. A combined reading of Sections 7-A and 47 would show thatthe non abstante clause found in sub section (5) of Section 7-A, isconfined to Section 7-A alone and is not found in Section 47(1) or47(2). Such an exclusion clause is not even found in Section 49(1).Moreover, though the first proviso to Section 47(1)(a) makes areference to the panel of names sent by the District Committee,clause (c) of Section 47(1) makes no reference to the DistrictCommittee.38. It is clear from a reading of the above provisions that thescheme of Sections 7-A, 47 and 49 makes a dichotomy between (i) theconstitution of the Board of Trustees (ii) the composition of suchBoard of Trustees and (iii) the actual act of making appointments tosuch a Board. Once this scheme of the Act is understood, it will beeasy to find out if the bar under Section 7-A(5) of the Act wouldapply, and if so, at what stage. CONSTITUTION: The first stage in the whole process of appointment oftrustees is the Constitution of a Board. In the case of institutionsincluded in the list and having no hereditary Trustee, Section 47(1)confers powers upon the Joint/Deputy Commissioner, Commissioner andthe Government to constitute a Board of Trustees. In the case ofinstitutions included in the list, but which has a hereditaryTrustee, Section 47(2) confers similar powers. In the case ofinstitutions not included in the list, Section 49(1) confers similarpowers upon the Assistant Commissioner. Thus a part of Sections 47(1), 47(2) and 49(1) deal with Constitution of the Board of Trustees. https://hcservices.ecourts.gov.in/hcservices/ Apparently, the bar of jurisdiction in Section 7-A(5) will have norelevance to the stage of Constitution of the Board of Trustees.COMPOSITION:The second stage is the composition of the Board of Trustees.The composition of a Board constituted under Section 47(1)(a), isprescribed as 3 persons under the first proviso to Section 47(1)(a).The second proviso empowers the Government to nominate 2 morepersons, (in addition to those 3) thus making the composition of theBoard, to be not less than 3 and not more than 5. This is furtherclarified by Section 47(1)(c), which stipulates that the Board shallcomprise of not less than 3 and not more than 5 persons. In respect of incorporated and unincorporated Devaswoms, in thetransferred territory, Section 47(1)(b) requires the Government toconstitute a single Board of Trustees.In respect of an institution included in the list, but having ahereditary Trustee, Section 47(2) does not speak about thecomposition, in the sense that the number of non-hereditary Trustees,who may be appointed under Section 47(2), is left to the choice ofthe Government, Commissioner, Joint Commissioner or DeputyCommissioner.By the first proviso to Section 47(1)(a) and by Section 47(1)(c), it is made mandatory to have one of those Trustees from amongthe members of the Scheduled Castes or Scheduled Tribes, subjecthowever to his fulfilling the qualifications prescribed in Section26.Thus there is a clear divide between the constitution of theBoard of Trustees and the composition to be maintained in such aBoard.Even at this second stage, dealing with the composition of theBoard of Trustees, the bar found in Section 7-A(5) cannot apply,since it deals only with appointments.APPOINTMENTS:Now, we come to the third stage, viz., that of makingappointments.Apart from conferring powers for the constitution ofthe Board of Trustees and prescribing the composition of such aBoard, the above provisions also indicate the method of appointment.The method of appointment prescribed by the first proviso toSection 47(1)(a) and the first proviso to Section 49(1), is that allthose appointments shall be from the panel of names sent by theDistrict Committee constituted under Section 7-A. But the power ofthe District Committee to send a panel of names, is curtailed bySection 7-A(5) in respect of institutions for which a scheme hasalready been settled by the High Court or any subordinate Court. Thenon abstante clause in Section 7-A(5) is restricted only to the https://hcservices.ecourts.gov.in/hcservices/ provisions of that Section.39. If the provisions of Sections 7-A, 47 and 49 are understoodas dealing with three issues viz., (i) constitution of the Board (ii)composition of the Board and (iii) appointments to the Board, it willbe clear that the bar of jurisdiction of the District Committeecontained in Section 7-A(5) is restricted to the third stage ofappointments to the Board and not to the first stage relating to thepower of constitution of the Board of Trustees or to the second stageof prescribing the composition of such Boards. This conclusion isinevitable for two more reasons viz.,:-(i) there is no reference to any District Committee, either inSection 47(1)(c) which deals with the composition of the Board ofTrustees of a listed institution having no hereditary Trustee or inSection 47(2) which deals with the appointment of non-hereditaryTrustees for a listed institution which has a hereditary Trustee; and(ii) there is also no reference to any District Committee in thesecond proviso under Section 47(1)(a) which deals with the power ofthe Government to nominate two additional Trustees, apart from theTrustees appointed by the Commissioner, Joint Commissioner or DeputyCommissioner. 40. Moreover, the first proviso to Section 47(1)(a), makes areference to the District Committee and the panel of names sent bythe Committee, only in respect of the Boards constituted by the JointCommissioner/Deputy Commissioner or Commissioner, in respect ofinstitutions whose income is (i) not less than Rs.10,000/- but lessthan Rs.2,00,000/- and (ii) not less than Rs.2,00,000/- but less thanRs.10,00,000/-. In respect of temples, whose annual income is notless than Rs.10,00,000/-, the power of constitution of the Boardvests with the Government under Section 47(1)(a)(iii). The firstproviso to Section 47(1)(a) makes a reference to District Committeeonly in relation to Section 47(1)(a)(i) and 47(1)(a)(ii). In respectof Boards constituted by the Government in terms of Section 47(1)(a)(iii), the first proviso under Section 47(1) does not apply, as itapplies expressly, only to items (i) and (ii). It is the secondproviso which applies to Section 47(1)(a) (iii). There is noreference to a District Committee in Section 47(1)(a)(iii). 41.All the above make it very clear that the bar ofjurisdiction of the District Committees to send panel of names forappointment as Trustees, applies only at the stage of makingappointments. The bar does not apply either at the stage ofconstitution of the Board for a religious institution or fordetermining the composition of the Board of such institution. If thebar under Section 7-A(5) is understood to be applicable even at thestage of constitution of a Board, it would mean that the power of theJoint/Deputy Commissioner, Commissioner and the Government, toconstitute a Board of Trustees, would stand ousted by any schemesettled or deemed to have been settled by this Court or any https://hcservices.ecourts.gov.in/hcservices/ subordinate Court. Such a contention as a matter of fact, has alreadybeen negatived by the Apex Court in the previous round. Therefore Iam of the view that (i) the requirement to have a Board comprising ofnot less than 3 persons and not more than 5 persons and (ii) therequirement that one of them should be a member of the ScheduledCastes or Scheduled Tribes, cannot be thrown overboard, by takingrefuge under Section 7-A(5). 42. As a matter of fact, Section 50 of the Act, steersclear of any doubt in this regard and it reads as follows:-"Section 50. The power to appointtrustees under Section 47 or Section 49 orSection 49-A shall be exercisablenotwithstanding that the scheme, if any,settled, or deemed under this Act to havebeen settled for the institution containsprovision to the country."43. Therefore the power to constitute a Board and the power tomake appointments to such Boards, do not depend upon the absence ofany scheme. If a scheme is in existence, the appointments cannot bemade from out of the list of persons sent by the DistrictCommittee,in view of the bar contained in Section 7-A(5). In otherwords, the appointments in such cases should be made otherwise thanby nominating persons from such a list. The bar under Section 7-A(5)goes only so far and no further. If there is no scheme in existence,the power to appoint is curtailed by Section 7-A in the sense thatthe appointments are to be made only from amongst persons whose namesfind a place in the list sent by the District Committee. 44. In the case on hand, there is an existing scheme, settledearlier by this Court. Therefore, appointment to the Board ofTrustees, cannot be made from amongst persons whose names find aplace in the list sent by the District Committee. But the obligationimposed under Section 47(1)(c), upon the Joint Commissioner, toconstitute a Board comprising of not less than 3 members and not morethan 5 members, one of whom should be a member of the ScheduledCastes or Scheduled Tribes, is not whittled down or obliterated bySection 7-A(5). Consequently, the scheme proposed by the impugnedorder should necessarily provide for a composition in tune withSection 47(1) (c). But in the impugned proceedings, there is noprovision for one of the Trustees to be a member of the ScheduledCastes or Scheduled Tribes. On the contrary, in the Draft ModifiedScheme, proposed in the previous proceedings O.A.No.95 of 1978, therewas a provision for one among the 5 Trustees to be a member of theScheduled Castes or Scheduled Tribes. 45. Therefore, it was actually the scheme proposed in theprevious proceedings that was in tune with the provisions of the Act,while the scheme proposed in the impugned proceedings is not. Hence,the impugned proceedings are violative of the statutory provisions,though the professed object of the impugned proceedings is to bring https://hcservices.ecourts.gov.in/hcservices/ the scheme in tune with the provisions of the Act. 46. In view of the above, the petitioners are entitled tosucceed and the writ petitions are liable to be allowed. Accordinglythe writ petitions are allowed and the impugned proceedings dated11.6.2003 in O.A.No.21 of 1999 are set aside. The Joint Commissioneris directed to issue notice, within 15 days of receipt of a copy ofthis orde to the parties, calling upon them to file objections to thedraft modified scheme. The parties will have 15 days time from thedate of service of notice on them, to file their objections to thedraft modified scheme proposed by the proceedings dated 25-6-1982 inO.A.NO.95 of 1978. The Joint Commissioner shall then consider all theobjections and pass final orders on the Draft Modified Scheme issuedon 25.6.1982 in O.A.No.95 of 1978 (which got confirmed upto the ApexCourt), within a period of 8 weeks thereafter. After final orders arepassed and a Board of Trustees constituted with eligible persons tothe Board, it is always open to the parties as well as thedepartment, to work out their remedies, if the scheme that comes intoforce, ever becomes unworkable at a later point of time. There willbe no order as to costs.Sd/-Asst.Registrar/True Copy/Sub.Asst.RegistrarSvnTo1.The Joint Commissioner, HR&CE Administration Department, Vellore.2.The Assistant Commissioner/ Executive Trustee, Arulmighu Devaraja Swamy Temple, Kancheepuram.+ 1 CC to Mr.J.Ramakrishnan,Advocate,SR.56624+ 1 CC to Mr.R.Singaravelan,Advocate,SR.56525+ 1 CC to Mr.K.S.Gnana Sambandan,Advocate,SR.56442+ 2 CC to Mr.K.V.Anantha Krishnan,Advocate,SR.56353,56352+ 1 CC to Mr.S.Bala Subramanian,Advocate,SR.56154+ 1 CC to Government Pleader,SR.56328WPs 23049 & 23050 of 2003PKB(CO)EM/2.11.09