A. Balasubramania Naicker vs A. Doraiswamy Naicker and Others

Somasundaram, J.—This is a petition against the issue of summons on the petitioner to show cause why he should not be directed to deliver

possession of the temples by force. The respondents are trustees appointed by the Area Committee. It is clear from the summons that what the

trustees seek to get possession of is only of the temples and not of the property belonging to the temples. This petition has been presented for

quashing the proceedings on the ground that the trustees have not produced a certificate in the prescribed form stating that the property in question

belongs to the religious institution. Mr. Raghavan appearing for the respondents, trustees, has raised a point of law, and that is that u/s 87 of the

Hindu Religious and Charitable Endowments Act a certificate by the Commissioner or the Deputy Commissioner in the prescribed form is required

only when the application is for the possession of properties belonging to the temple. But if the application is only for possession of the religious

institution it is enough if the trustees produce before the Magistrate the order of appointment and the application is made by the trustees so

appointed. In short when the trustees appointed by the Area Committee claim possession of the institution they need not produce the certificate

which they should in cases where they seek to claim possession of the properties belonging to the temple. The contention is based upon the

wording of Section 87 of the Hindu Religious and Charitable Endowments Acts. Section 87 of the Act runs as follows:

Where a person has been appointed-

(a) as trustee or executive officer of a religious institution, or

(b) to discharge the functions of a trustee of a religious institution in accordance with the provisions of this Act, or

(c) in any scheme framed by the Board before the commencement of this Act, and such person is resisted in, or prevented from, obtaining

possession of the religious institution or of the records, accounts and properties thereof, by a trustee, office-holder or servant of the religious

institution who has been dismissed or suspended from his office or is otherwise not entitled to be in possession or by any person claiming or

deriving title from such trustee, office-holder or servant, not being a person claiming in good faith to be in possession on his own account or on

account of some person not being such trustee, office-holder or servant, any Presidency Magistrate or any Magistrate of the first Class in whose

jurisdiction such institution or property is situated shall, on application by the person so appointed, and on the production of the order of

appointment, and where the application is for possession of property, of a certificate by the Commissioner in the prescribed form setting forth that

the property in question belongs to the religious institution, direct delivery to the person appointed as aforesaid of the possession of such religious

institution, or the records, accounts and properties thereof, as the case may be;

Provided, however, that before issuing any such certificate in respect of any property, the Commissioner shall give notice to the trustee, office-

holder or servant of the religious institution, as the case may be, of his intention to issue the certificate and consider the objections, if any, of such

trustee, office-holder or servant;

Provided also that for the purpose of proceedings under this section, the certificate aforesaid shall be conclusive evidence that the properties to

which it relates belong to the religious institution:....

The very wording of the section

any Presidency Magistrate or any Magistrate of the first class in whose jurisdiction such institution or property is situated shall, on application of the

person so appointed, and on the production of the order of appointment, and where the application is for the possession of property, of a

certificate by the Commissioner in the prescribed form setting forth that the property in question belongs to the religious institution, direct delivery

of the property.

makes a distinction between asking for delivery of the mere institution and asking for possession of property. On the wording of this section the

contention of the learned Counsel for the respondents in well-justified and the learned Counsel for the petitioner who took time to consider now

fairly concedes that this is the correct position in law, namely, that the section does not require the production of a certificate in a case where the

trustees newly appointed seek only possession of the institution and this application being only for possession of the institution, a certificate is not

necessary and the Magistrate is fully justified in refusing to accede to the contention of the petitioner. This petition is therefore dismissed.