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Judgment
M. Jaichandren, J.—Since the issues arising for the consideration of this Court in both the appeal suits and in the writ petition are similar in
nature, they have been taken up together and a common Judgment is being passed.
The appeals, in A.S. No. 271 of 2007 and A.S. No. 4 of 2011, had been filed against the judgment and decree, dated 12.7.2006, made in
O.S. No. 5545 of 2004, on the file of the VIth Assistant City Civil Court, Chennai. The suit in O.S. No. 545 of 2004, had been filed seeking for a
declaration declaring that the orders of clarification bearing Nos. D.Dis.25342/2004 (D2), dated 16.4.2004 and D.Dis.25342-2/2004 (D2),
dated 18.5.2004, issued by the first defendant in A.P. No. 12 of 2003, are illegal, void and inopeartive and for a declaration that the scheme of the
third defendant Devasthanam, as modified by the order, dated 4.9.2003, passed by the Joint Commissioner, Hindu Religious and Charitable
Endowments Department is valid and binding on the defendants and for costs.
The plaintiff in the suit, in O.S. No. 5545 of 2004, had stated that the second defendant in the said suit is a Hindu Religious and a Charitable
Trust and it is governed by the provisions of the Hindu Religious and Charitable Endowments Act, 1959. The defendants 3 to 7 had been carrying
on the administration of the second defendant Devasthanam. The defendants 3 to 7 had been incharge of the administration of the second
defendant Devasthanam, which runs and maintains the Sri Karaneeswarar Temple, Saidapet.
It had also been stated that the management and the administration of the second defendant Devasthanam is governed by a scheme, which had
been settled, originally, by the Subordinate Judge, Chingleput, in M.P. No. 1 of 1924, in O.S. No. 43 of 1919. The scheme had been effective
from 23.4.1924. The salient features of the original scheme, inter alia, dealt with the description of Karani village as being made up of seven
streets, election of three executive trustees, who could hold office for three years, the residential and other qualifications of the persons, who can
become trustees of the second defendant Devasthanam and with regard to those, who can vote for electing the trustees and the mode and extent of
the expenditure that the trustees can incur in the course of the administration of the said Devasthanam. As per the original scheme, Karani village
consisted of seven streets, which are as follows:
i) Karaneeswarar koil (Car) street
ii) Vathiyar Subbaraya Mudali Street
iii) Subramaniya Mudali Street
iv) Koothadum Pillaiyar Koil Street
v) Jones Road (Part)
vi) Kappara Ponnappa Mudali Street - not presently existent
vii) Visalal Street (now Karani Garden Main Street)
The plaintiff had also stated that he belongs to the Sengunthar Mudaliar Community of Karani village and he is a worshipper of Sri
Karaneeswarar Temple, Saidapet. He had made substantial contributions for the activities of the Temple. While so, after the coming into force of
the amended Hindu Religious and Chartable Endowment Act, 1959, the Joint Commissioner of the Hindu Religious and Chartable Endowments
Department had taken steps to modify the original scheme framed for the Temple. However, the trustees of the second defendant Devasthanam
had filed a suit, in O.S. No. 6784 of 1971, on the file of the II Assistant City Civil Court, Chennai, and had obtained a decree, dated 2.3.1974,
declaring that the second defendant Devasthanam had a right to elect its own representatives for managing its affairs without interference from the
Hindu Religious and Charitable Endowments Department. The modified scheme framed by the Hindu Religious and Charitable Endowments
Department had been set aside. Subsequently, as the Supreme Court, confirming the Judgment of a division bench of this Court, had held that the
powers of the Court to modify its scheme stood transferred to the Hindu Religious and Charitable Endowments Board and that the first defendant
was well within its powers to issue a notice to the second defendant Devasthanam to modify the schemes framed by the Court.
It had also been stated that as the second defendant Devasthanam was being, allegedly, mismanaged by the trustees, the Joint Commissioner,
Hindu Religious and Charitable Endowments Department, had issued a notice, dated 24.11.1998, initiating suo moto proceedings, in O.A. No. 20
of 1998, to modify the original scheme for the second defendant Devasthanam, in accordance with Section 188(1)(b) of the Hindu Religious and
Charitable Endowments Act, 1959. This had been done pursuant to a representation made by the plaintiff and a few other persons to the Hindu
Religious and Charitable Endowments Department, in the year 1998, complaining about the maladministration and mismangement of the second
defendant Devasthanam, by the successive trustees of the Temple. The plaintiff had been included as the respondent in the said proceedings.
It had been further stated that the two main contentions in the modification proceedings were that the area of operation of the scheme should be
enlarged to cover the members of the Sengunthar Mudaliar Community living in the entire Saidapet area and that the mode of election and
appointment of trustees ought to be changed, in view of the malpractices in the conduct of the elections.
It had also been stated by the plaintiff that the old Visalal Street specified in the original scheme is the present Karani Garden Main Street,
where the plaintiff is residing, and that the Karani Garden 1st, 2nd and 3rd streets, which were not in existence at the time of framing of the original
scheme, came into being subsequently and that they were also a part of the Karani village and that a substantial portion of the lands in the said
streets belonged to the second respondent Devasthanam.
It had also been stated that, on being notified of the modification proceedings, the defendants 3 and 4 had filed a writ petition, in W.P. No.
1495 of 1999, and the said writ petition had been, subsequently, dismissed by this Court. Thereafter, the Joint Commissioner of the Hindu
Religious and Charitable Endowments Department had passed the order, on 29.8.2001, issuing the draft of the modified scheme. The defendants
3 and 4 had filed an appeal before the first defendant, in A.P. No. 29 of 2001. The first defendant, by an order, dated 18.2.2002, had remanded
the matter to the Joint Commissioner of the Hindu Religious and Charitable Endowments Department to modify the scheme, in accordance with the
provisions of the Hindu Religious and Charitable Endowments Act, 1959, thereby, upholding the power of the Joint Commissioner to modify the
scheme. Thereafter, the Joint Commissioner had passed a fresh order, on 27.3.2002, issuing a fresh draft of the modified scheme. After the
publication of the draft of the modified scheme and after calling for and hearing the objections, he had passed an order, on 4.9.2003, issuing a
modified scheme, which had been published in the Tamil Nadu Government Gazette Extraordinary, on 17.9.2003. One of the main features of the
modified scheme was that the area of operation of the Scheme was expanded to include all the members of the Sengunthar Community in the entire
Saidapet area, for their benefit. Further, the mode of election/appointment of the Trustees had been changed to be in accordance with the
provisions of the Hindu Religious and Charitable Endowments Act, 1959.
It had also been stated that in the meanwhile, the third and the fourth respondents had been removed from the post of trustees, by the order of
the first defendant, dated 19.12.2002, due to mismanagement of the affairs of the second defendant Devasthanam. A revision petition filed by
them, before the Government of Tamil Nadu, challenging their removal had been dismissed, on 16.5.2003, and the state Government had issued
the Government orders, in G.O.Ms. Nos. 105 and 106 of 2003, dated 16.5.2003, appointing an Executive Officer and a fit person for the second
defendant Devasthanam and Temple. The third and fourth defendants, who were no longer in office, had filed an appeal, in A.P. No. 12 of 2003,
before the first defendant without having any authority to do so, challenging the order, dated 4.9.2003, passed by the Joint Commissioner,
modifying the scheme. The first defendant, after hearing the arguments of the parties concerned, had passed orders, on 24.3.2004, dismissing the
appeal. However, the plaintiff had received an order, dated 16.4.2004, from the first defendant, clarifying the earlier order passed by him, on
24.3.2004, to the effect that the scheme would be opeartive only in the area, as it was prior to the modification of the scheme. The said order of
clarification was purportedly based on a letter, dated 14.4.2004, issued to him by the third defendant seeking clarification of his appellate order,
dated 24.3.2004.
The plaintiff had further submitted that the impugned order of clarification issued by the first defendant, without notice to the plaintiff and to the
other beneficiaries of the modified scheme, is arbitrary, illegal and void. In fact, the first defendant had issued a notice calling for a hearing, on
23.4.2004, based on the said letter, dated 16.4.2004, issued by the third defendant seeking clarification. It can be seen that the first defendant had
admitted that the order of clarification, dated 14.4.2004, had been issued without notice to the plaintiff and therefore, it is illegal and non est in the
eye of law. In such circumstances, the plaintiff had filed a memo, on 23.4.2004, when the matter came up for hearing, stating that the original
order, dated 24.3.2004, was not ambiguous and that it did not require any clarification. However, the first defendant had passed another order, on
18.5.2004, after hearing the parties, including the plaintiff, as though it had been passed based on the request for a further clarification from the
third defendant, upholding the earlier order of clarification and stating that the plaintiff had stated in his memo that there was no ambuiguity in the
order requiring any further clarification and that there was nothing left to be clarified. While the earlier order of clarification was by itself contrary to
law, the order of the first defendant referring his earlier order of clarification, dated 16.4.2004, is also arbitrary and illegal.
In such circumstances, the plaintiff had filed the suit, in O.S. No. 5545 of 2004, stating that the impugned order of the first defendant, dated
16.4.2004, clarifying his original order, dated 24.3.2004, and the consequential order, dated 18.5.2004, are illegal, void and contrary to law and
the principles of natural justice. The order, dated 16.4.2004, clarifying the original order, dated 24.3.2004, has the effect of allowing the appeal,
which had been dismissed in toto, by the original order of the first defendant. The first defendant, having become functus officio, once he had
passed the order, dated 24.3.2004, in A.P. No. 12 of 2003, dismissing the same, he had no authority or jurisdiction to pass the impugned order,
dated 16.4.2004.
The trial Court, in O.S. No. 5545 of 2004, had passed a decree stating that the orders of clarification bearing Nos. D.Dis.25342/2004 (D2),
dated 16.4.2004 and D.Dis.253422/2004 (D2), dated 18.5.2004, issued by the first defendant in A.P. No. 12 of 2003, are void.
The appeal suit in A.S. No. 4 of 2011, had been filed by the Commissioner of Hindu Religious and Charitable Endowments Department,
Chennai, who was the first defendant in the suit, in O.S. No. 5545 of 2004, stating that the trial Court had erred in law in holding that the appellant
had no power, to clarify the order, dated 24.3.2004, when he had such power, u/s 69(2) of the Hindu Religious and Charitable Endowments Act,
1959.
It had also been stated that the trial Court had erred in not adverting to the fact that, even under the earlier scheme framed for the
administration of Sri Karaneeswarar Temple, Saidapet, the right to elect the trustees had been confined only to the people of Saiva Sengunthar
Mudaliar Community, residing in the six streets mentioned therein.
It had also been stated that the trial Court had erred in holding that the suit, in O.S. No. 5545 of 2004, is not barred by limitation. It had been
further stated that the trial Court had erred in entertaining the suit, as it is not a suit that would fall, u/s 70(1) of the Hindu Religious and Charitable
Endowments Act, 1959, and that the order, dated 23.4.2004, passed by the first defendant is not an order, u/s 69 of the said Act.
It had been further stated that the trial Court had failed to note that the provisions of Section 118 of the Act would enable the authority
concerned to modify the scheme, that had been framed earlier.
Even though various grounds had been raised in the appeal, in A.S. No. 4 of 2011, the learned Additional Advocate General appearing on
behalf of the appellant had made his submissions only on the aspect of jurisdiction of the Commissioner to clarify his earlier order.
He had submitted that the Commissioner of Hindu Religious and Chartable Endowments Department has the power to clarify his earlier order,
as per the provisions of the Hindu Religious and Charitable Endowments Act, 1959.
In view of the averments made and on a perusal of the records available, this Court is of the considered view that the appellant cannot be
aggrieved by the judgment and decree of the trial Court, dated 12.7.2006, made in O.S. No. 5545 of 2004, as there is no finding in the said
judgment that the authority concerned has no power to clarify. It has only been stated in the said judgment that, in the guise of issuing a clarification,
no modification can be made to the earlier order. As such, the appeal, in A.S. No. 4 of 2011, is liable to be dismissed. Hence, it is dismissed.
Insofar as the appeal suit, in A.S. No. 271 of 2007, is concerned, this Court finds it appropriate to set aside the judgment and decree of the
trial Court, dated 12.7.2006, made in O.S. No. 5545 of 2004. The clarificatory orders issued by the first defendant, dated 16.4.2004 and
18.5.2004, are set aside, as they are found to have been issued by the first defendant, without affording a reasonable opportunity of hearing to the
parties concerned. Accordingly, without going into the merits of the matter, the clarificatory orders issued by the first defendant, dated 16.4.2004
and 18.5.2004, are set aside and the matter is remitted back to the Commissioner of Hindu Religious and Charitable Endowments Department,
Chennai, to pass appropriate orders, on merits and in accordance with law, on the letter, dated 14.4.2004, issued by one R. Ramakrishnan, on
behalf of the defendants in the suit, in O.S. No. 5545 of 2004, seeking clarification regarding the order of the first defendant, dated 24.3.2004,
made in A.P. No. 12 of 2003, after giving a reasonable opportunity of hearing to the parties concerned, within a period of three months from the
date of receipt of a copy of this order. The appeal is ordered accordingly. No costs. Connected M.P. No. 1 of 2007, M.P. No. 1 of 2011 are
closed.
W.P. No. 16890 of 2004:
Pursuant to the order passed by this Court, in A.S. No. 271 of 2007, we find that no further orders are necessary in the above writ petition.
Hence, the writ petition stands closed. No costs. Connected W.P.M.P. No. 20010 of 2004 is closed.