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Judgment
Padmanabhan, J.—A batch of writ petitions is being disposed of by a common judg ment. The short question that arises for consideration in these writ petitions is as to the date from which the trustees appointed by the Hindu Religious Endowments (Administration) Department for short H.R. and C.E. department, began to hold their office.
As a pattern, we shall refer to the facts in Writ Petition No. 4218 of 1982. The Respondent, H. R. and C.E. department called for applications for appointment of non-hereditary trustees to Arulmighu Abirameswarar Temple from among the Hindu worshipping public residing in and around the village. The Petitioner was one of the applicants. The Petitioner and two others, namely, Rasu and Subbaraya Udayar, were appointed trustees in exercising Respondent''s powers u/s 49 read with Section 47 of the Hindu Religious and Charitable Endowments Act, hereinafter referred to as the Act. The order provides that the trustees shall hold office for a period of three years from the date of the order. It is the Petitioner''s case that by the order dated 18th June 1979 itself the Respondent directed the the fit person who was administering the affairs of the temple should hand over charge of the Chairman, Board of Trustees only after the election of such Chairman. The Respondent directed the Inspector, H.R. and C.E., Villupuram to convene a meeting of the trustees for the purpose of electing a Chairman. Accordingly, the Petitioner was elected as Chairman. The Respondent thereafter by his proceedings dated 2nd August 1981 directed the fit person to hand over charge of the temple to the Petitioner. The Petitioner assumed office as the Chairman and on 5th August 1981 he along with Co-trustees took oath of office and secrecy, administered by the Inspector of H.R. and C.E., Villupuram. Therefore, the Petitioner, and other co-trustees are entitled to hold the office as trustees for a period of three years from 5th August 1981 till 4th August 1984. On 21st March 1982 the Respondent issued a notification calling for application for appointment as non-hereditary trustees to the same temple It is in these circumstances that the Petitioner has come forward with the writ petition for the issue of a writ of mandamus res training the Respondent from appointing non-hereditary trustee to the said temple pursuant to the notice dated 21st March 1982.
The short submission made by Mr. T.L. (Sic), the learned Counsel for he Petitioner is that under the and the Board of Trust are or titled to hold office as seen as the appointment of trustees is made The Assistant Commission R.R. and C.E. department, is enjoined to convene a (Sic) for the election of the chairman of the Board of Trustees. the Board of Trustees can be said to be regularly constituted (Sic) a meeting of the appointed trustees is convened and one of the trustees is elected as the Chairman. Further, under the rather the trustees are obliged to take on oath professing their faith in the Hindu religion. 0n by thereafter, the trustees can assume office. He further argued that till the new appointed trustees are put in possession of the temple, the in trustees will not be deemed to have assumed office. Mr. Rammohan''s further con-(Sic) is that as a matter of practice all the on hereditary trustees appointed under the Act shall take aim oath as provided under the Rules and unless and until such an oath is taken the knew appointed trustees cannot become qualified to hold the of the of the trustees.
The learned Government Header contends that the do not provide that a trustee should take an oath of office and only servants of the temple are enjoined to take an oath profession Hindu religion. Further, according to the learned Government Pleader, the trustees must be deemed to have entered their office from the date of appointment. The trustees cannot claim the office either from the date on which the election of the Chairman took place or from the date on which they get possession of the temple and properties. If they do not get possession of temple and the properties from he person who is incharge thereof it is for them to take appropriate proceedings as provided, under the Act for recovery of the same. Mr. M.N. Padmanabhan appearing for some of the Respondents in the writ Petitions, supported the argument of the learned Government Pleader Another contention that is raised is that having accepted the office of the trusteeship on the basis-of the order which stated that they will hold office for a period of three years from the date of the order. It will not be open to the trustees to say that they are entitled to hold office, for a period of three years from the date, different from the date of the order. The question for consideration is how far the contention of the learned Counsel for the Petitioner can be sustained: Section 47 of the Act reads as follows:
Whereas religious institution included in the list published u/s 46 or in respect of which the Assistant Commissioner has no power to appoint trustees has no hereditary trustee, the Commissioner shall constitute a Board of Trustees consisting of not less than three and not more than five persons appointed by him, of whom one shall he member of the Scheduled castes or Scheduled tribes.
Section 47(2) confers powers on the Commissioner to appoint non-hereditary trustees for an institution where after an enquiry he considers for reason to be recorded that the affairs of the institution hot and are net ill by to be properly managed by the hereditary trustee or trustees. Sub-Section 4 of Section 47 confers right upon the hereditary trustee or trustees to file aft application to the Court to set aside or modify such order. Section 47(3) reads as follows:
Every trustee appointed under Sub-section (1) and subject to the result of an application, if any, filed under Sub-section (4) every non-hereditary trustee appointed under Sub-section (2) shall hold office for a term of three years, unless in the meanwhile the trustee is removed or dismissed or his resignation is accepted by the Commissioner or he otherwise ceases to be a trustee.
The, proviso is not necessary for the purpose of this case. Section 26 prescribes qualifications of trustees to be appointed:- (a) if he does not profess the Hindu religion (b) to (ff) omitted. Section 48 read as follows:
(1) In the case of a religious institution for which a Board of trustee is constituted under Sub-section (1) of Section 47 the Board of Trustees shall, within such period as may be prescribed elect one of its members to be its Chairman and if no Chairman is elected within the period so prescribed, the Commissioner shall nominate the Chairman.
(2) In the case of any other religious institution haying more than one trustee, the trustee of such institution shall, within such period as may as may be prescribed, elector one from among themselves to be the Chairman, and if no Chairman is elected within the period so prescribed, the Commissioner shall nominate the Chairman.
Section 48(3) provides that a Chairman elected or nominated under Sub-section (1) or Sub-section (2) shall hold office for such period as may be prescribed. Section 110 confers powers on the Government to make rules and it states that, Government may, by notification, make rules to carry out the purposes of this Act. Without prejudice to the generality of the foregoing power, such rules may provide for the manner of proof of the fact that a person professes Hindu Religious for the purposes of this Act. In accordance with Section 116(2)(XXiv) rules have been framed which are called the Manner of Proof of Professing Hindu Religious Rules. Rules 2 and 3 read as follows:
Every person appointed or deemed, to, be appointed, under the Madras Hindu Religious and Charitable Endowments Act, 1959 (Madras Act XXII of 1959) shall sign a pledge in the form appended to these rules.
The pledge referred to in Rule 2 may be caused-to be taken by the appointee in the immediate presence, of the Executive Officer or Chairman, Board of Trustee of the religious institution before the presiding deity in the nearest Hindu Religious Institution selected for the purposes and two witness and the fact of having done so shall be reduced to writing and placed before the head of the office, who-shall record the same and kept it as a permanent record along with the service register of the person concerned.
EXPLANATION in the case of new appointees the pledge referred to herein shall be taken before they enter upon their duties. The form is given thus.
Form prescribed under Rule 2 issued u/s 116(2)(XXIV) of the Madras Hindu Religions and ''Charitable Endowments Act, 1959.
"I... Son
residing at... Village...
Tabook... District,... appointed to the
post of ... do solemnly swcer that I am
a Hindu by birth and profess the Hindu Religion.
On the basis of the provisions of the Act and the Rules, the contention of the Petitioner is that before trustee assumes office necessary that an oath of office should be taken as provided for in the rule and unless and until the trustees, take the oath they cannot be said to have assumed office, On the other hand, the (Sic) entice of the learned Government p is that the rules (sic) taking of oath do not apply to the thus tees, but art mean only for the employees of the religious institution The learned Government Pleader further stated that never been the practice for the trustees to take path. It also filed a counter affidavit to the effect that the Petitioners have not taken such oath on their appointment as trustees.
we have no hesitation in rejecting the contention learned Government pleader that (sic) term of office of a trustee will be for a period of three years from the date of the order of appointment. This is because the section itself contemplates that every trustee Appointed Sub-section (1) or under Sub-section (2) of Section 47 shall hold office for a term of three years. Other word, before a trustee can be said to commence holding of office be has got to be appointed as trustee. The order ot appointment can take effect only when a trustee receives the order of appointment and does something to show that he has accepted the appointment. We can visualise the situation where an order of appointment is prepared and is received by the trustees on the very; same date but some days after the date of the order. In such case the appointment itself can become effective only when the trustee receives the order, assuming that as soon receives order, he accepts the appointment. In such a situation it would be unreasonable to hold that he had started the office u/s 47(3) of the Act even before he is appointed as it trustee. Without the order of appointment in his hand he can not exercise Powers conferred on him under the Act. We therefore rejects, the contention of the learned Government Pleader that the tenure of the office of the trustee must be deemed to commence front the date of the order of appointment.
We shall now consider the contention of the Counsel for the Petitioners that taking of an oath professing Hence religion is a must for the newly appointed trustees and they can be said to hold office after they take oath in accordance with the rules. As already extracted Rule 2 of the Manner of Proof of Professing hindu religious Rules, states that every person appointed or deemed to the appointed under the Act shall sign a pledge in the form appended to the Rules . If one reads Rule 2 alone, it will not be possible to exclude the newly appointed trustees from mischief of the Rule because Section 47 refers to appointment of persons as trustee and the constitution of a Board of Trustee consisting of not less than three and not more than five persons appointed, by, him. Similarly Section 47(3) states that ever trustee Appointed (emphasis supplied) shall hold office for a period of years. In Sections 43(3) and (5) the word appointment with reference to the trustee is used. In the light of these provision it is not possible to confine the words every person appointed or deemed to be appointed under the Act in Rule 2 to the employees of the temple other than the trustees. Further, Section 26 states that a person shall be disqualified for being appointed as, and for being a trustee of any religious institution if he does not profess the Hindu religious. Section 53(2) confers power on the appropriate authority to suspend, remove or dismiss any trustee of a religious institution if he ceases to profess Hindu religion. Hence, it is clear that in order to be appointed as a trustee, a person shall profess Hindu religion. It is in this context Sections 116(2)(xxiv) which provides for rules being made for the manner of proof of the fact that a person professes Hindu religion for the purposes of this Act, is to be understood. It is significant to note that Section 116(2)(xxiii) specifically refers to officers and servants for appointment to religious institutions, while Sections 116(2)(xxiv) refers to the persons in general. We have therefore no hesitation in holding that every non-hereditary trustees has necessarily got to take a pledge as required by the Rules. The explanation states that the pledge shall be taken before the appointees enters upon their duties. However, there is nothing in the Act or in the Rules to indicate what would happen if the trustees, who profess Hindu-religion, assume office without taking the pledge as required by the Rules. Further it is stated in the counter affidavit filed by the Asst. Commissioner, H.R. and C.E. on 2nd July 1983 that in the case of trustees, it is not the practice of the department to provide for taking of pledge for the trustees and that such a" procedure is adopted only in the case of employees and servants of the religious institution as required in Rule 3. It is further stated in the affidavit that there is a provision in the application that only Hindus alone should apply, for appointment as hereditary trustee, and unless there is a doubt in the mind of the authorities that the person does not profess Hindu religion there will be no necessity to call upon the non-hereditary trustee to take his pledge. In view of these circumstances, we are unable to accept the contention of the Petitioners that the non hereditary trustees appointed under the Act would hold office for three years from the date of their taking their pledge as required in the Rules
We may however point out that in view of our holding that the rule requiring the taking of pledge would apply to non-hereditary trustees as well. In future, it would be desirable for the authorities to insist upon a pledge being taken by such trustees, or at least get a declaration signed by them on the application form itself in the form prescribed under the Rules that they profess the Hindu religion.
The learned Counsel for the Petitioners cited the decision in Koduru Sriganga Reddy and Others Vs. The Commissioner, Endownments Department, Hyderabad and Another, The learned Judges held that-
Before a trustee enters upon his office, the Commissioner or any other person authorised by him, shall administer to the trustee the oath of office and secrecy. Therefore, if an trustee does not take the oath be cannot enter upon his office. The oath cannot be taken by himself, but it has to be administered to him by an authority under the Act.
This decision is not helpful for the present case because Section 16 of the A.P. Charitable and Hindu Religious Institutions Endowments Act, 1966 clearly provides that before a trustee enters upon his office, the Commissioner or any other person authorised by him in this behalf shall administer to the trustee the oath of office and secrecy according to the form prescribed for that purpose, there is no such section in the Tamil Nadu Act. The rule also is not specific on the question.
The question then for consideration is what shall be the date from which the non-hereditary trustees appointed under the Act would hold office. In all such cases, there should be a procedure under which the new appointee who is appointed as a trustee of a religious institution acknowledges in writing that he assumed charge of his office. In cases where persons appointed by H.R. C.E. authorities themselves are holding the office, it is expected that they should also acknowledge in writing that they had handed over charge and the newly appointed trustees Should equally acknowledge in writing that they have take charge of their office. There may however be cases where non-hereditary their who are already holding the office may not be willing to heard over charge to the newly appointed trustees. In such Situations it is expected that the newly appointed trustees should acknowledge in writing to the authorities concerned that they have assumed charge of their office and thereafter taking appropriate proceeding as provided in the Act for the recovery of the possession of the properties and records of the concerned institution. It is not clear from the counter-affidavit whether such a procedure is being followed or not followed by the H.R. and C.E. department. In all the cases before us it is not disputed that a fit person appointed by the Department itself was holding the office by the time when the Petitioners were appointed as non-hereditary trustees. In such circumstances, there must be something in writing to show that the fit person who is in charge of the affairs of the religious institution handed over charges of his office to the newly appointed trustee and that the newly appointed trustee took over charge from the fit person. The date of such handing over charge and taking over charge would be the date from which normally the newly appointed trustee would commence to hold office and he shall be eligible to hold office u/s 47 for a period of three years from the date of assumption of office. We make it clear that in future as and when new trustees are appointed the authorities should have it recorded in writing that the newly appointed trustees have taken over charge from the persons already holding the office and the latter had handed over the charge . In (sic) where hereditary trustees in whose place or along with whom the newly appointed trustees are appointed refuse to hand ever charge, the newly appointed trustees should record that they have assumed office notwithstanding the refusal of the existing trustees to hand over charge and that they would be taking appropriate steps to recover possession of the properties of the institution. This is implicit in Section 47(3) itself where it provides that a trustee shall hold office for a term of 3 years.
In all the present petitions, our attention has not been drawn to the fact that the Board of Trustees assumed office on any particular date and the fit person handed over charge on any particular date. We have also not been furnished with any record proving that fact. Consequently, we are driven to the necessity of solving the question as to whom exactly the Petitioners assumed office. In all the cases before us, we are concerned only with the appointment of a Board of Trustees. We have already referred to Section 48(1) which is to the effect that the Board of Trustees should elect one of its members as a Chairman within the prescribed period, and if no Chairman is elected with on the prescribed period, it will be the duty of the Commissioner to nominate the Chairman. Rules have been framed for the function of Board of Trustees under G.O. No. 4524, dated 5tb November-1960. Rule 18 enjoins that the Chairmen shall be elected under Sub-section (1) and (2) of Section 48 within sixty days of the date Of the order of appointment of the last trustee constituting the Board of Trustees or Within thirty days from the date of order directing the election of Chairman or within fifteen days before the date of expiry of the period of the outgoing Chairman. According to Rule 19 such a Chairman shall hold office of a period of two years from the date of his election or nomination, unless he ceased to be a trustee in the meanwhile. Rule 16 provides that the election of the Chairman shall be made at a special meeting and shall be by secret ballot. It further provides that when there is no Chairmen in office for convening a special meeting, the Assistant Commission having jurisdiction over the area in which the institution is situate or any officer specially authorised by him in his behalf shall convent the special meeting and preside over them. In all these cases, it is admitted that (here was no Chairman in office and a frit pet son was holding office. As an illustrative case, we may state in Writ Appeal No. 785 of 1982 the Inspector has convened a meeting on 16th December 1981 for the election of the Chairman and the election of the Chairman took place only on that date. The functioning of Board of Trustees Rules made further provision for the functioning of the Board of Trustees. It must necessarily follow that the Board of Trustees cannot start functioning under the Rules unless and until a Chairman is elected according to the Rules. We therefore hold that in all these cases, the trustee must be deemed to have assumed office on the dale on which the Chairman of the Board of Trustees was elected. They will hold office for a period of three years from the date of election of the Chairman.
We are not impressed with the argument of the learned Government Pleader that having accepted the order of appointment which stated that they would held office from the date of the order, the trustees should be estopped from contending that they would be entitled to hold office for a period of three years from any day other than the date of the order. As, we have already pointed out Section 47 states that the trustees shall hold office for a period of three years. We have also made it clear that before receipt of the order of appointment no trustee could be deemed to be holding the office. Unless and until they receive the order of appointment itself, they will not be in a position to hold office. In the circumstances, to say that they must be considered to have started holding office from a date even anterior to the date of the receipt of the appointment order itself would be in violation of Section 47 itself. We therefore reject this contention.
We are equally not impressed with the contention of the learned Counsel, for the Petitioners that unless and until the newly appointed trustees are put in physical possession of the properties of the religious institution, it cannot be deemed to be holding the office.
In the result, we hold that in all these cases, the Board of Trustees must be deemed to have started holding the office from the date of election of the Chairman of the Board of Trustees. As already stated in future we direct that as and when the Board of Trustees are constituted after the election of the Chairman or whom the sole trustee is appointed, the authorities should, have it recorded that the Board of Trustees or the sole trustee, as the case may be, he has assumed office and such a Board or a also.
In the result, Writ Appeal No. 785 of 1982 and the other writ petitions are allowed, to the extent indicated above. There mil be no order as to costs.
As regards Writ Appeal No. 779 of 1982, this appeal is filed against the dismissal of Writ Petition No. 10086 of 1982. The case of the Petitioners-Appellants is that they are entitled to hold office of trustee from the date of their assumption of office. In this case, the Appellants were appointed on 9th January 1980. From the minutes book it is seen that the first Petitioner-first Appellant Roopalmga Chettiar was elected as Chairman of the Board of Trustees on 8th March 1980. In the circumstances, the term of office of the Appellants would have expired on 7th March 1983 on the basis that the Board war constituted with the election of the Chairman on 8tn March 1980. In the circumstances the Appellants Petitioners are not entitled to any relief. Herd the writ appeal is dismissed. No costs.