Ramaswami Pandaram and another vs Vasudeva Reddiar

Krishnaswamy Reddy, J.—This petition has been filed by the hereditary trustees against the order of the District Magistrate, Salem, directing

delivery of possession of the temple and accounts to the respondent. The revision petitioners claim to be the hereditary trustees of Sri

Palaniandavar temple, Panamarathupatti Village, Salem Taluk. The respondent has been appointed as the Managing trustee of the temple by the

Hindu Religious and Charitable Endowments Board. The respondent filed a petition before the District Magistrate, Salem under S. 101 of the

Hindu Religious and Charitable Endowments Act (Madras Act 22 of 1959) for a direction of delivery of possession of the temple and the accounts

by the revision petitioners.

The revision petitioners resisted the application on the ground that the respondent was not appointed trustee as prescribed by the Hindu

Religious and Charitable Endowments Act (hereinafter called the Act) and that the Assistant Commissioner had no power to appoint him as

managing trustee and that, therefore, the application filed by the respondent for delivery was incompetent and not maintainable. The District

Magistrate allowed the petition holding that the appointment of the respondent as managing trustee was made under S. 54 of the Act and that,

therefore the petition was maintainable. The learned Counsel for the revision petitioners urged before me that the respondent was appointed by the

Assistant Commissioner who had no powers to appoint a non-hereditary trustee and that therefore, the appointment was invalid. He further

contended that it is only the Area Committed that is empowered to appoint non-hereditary trustees and that the finding by the lower Court that the

appointment was made under S. 54 of the Act was wrong. On the other hand, the learned Counsel for the respondent urged that in an application

under S. 101 of the Act, the Court has no jurisdiction to enquire into the legality or propriety of the appointment made and the only remedy open

to the petitioners was to file a civil suit as provided under the proviso to S. 101 of the Act.

To appreciate the relative contentions of the parties, it may be necessary to set out the relevant provisions of the Act. Under S. 15(1) of the Act,

the Government, by notification, shall constitute an Area Committee for all temples situated in an Assistant Commissioner''s Division or part thereof

other than temples included in the list published under S. 46......Under S. 15(1), an Area Committee shall exercise the powers conferred and

Discharge the duties imposed on it by this Act or the rules made thereunder in respect of the temples, specific endowment and the charitable

endowments mentioned in Sub-Cls, (i) (ii) and (iii) of Cl. (2). S. 49 of the Act deals with the power of Area Committee to appoint trustees. It

provides:

In the case of any religious institution which is not included in the list published under S. 46 and is not a religions institution notified or deemed to

have been notified under Ch. VI of this Act, the Area Committee shall have the same power to appoint trustees as it vested in the Commissioner

case of a religious institution referred to in Sub-S. (1) of S. 47;

Provided that the Area Committee may, in the case of any institution which has no hereditary trustee, appoint a single trustee......

It is not disputed in this case that the temple in question does not fall within the purview of S. 49 (1).

Under S. 54of the Act, the Deputy Commissioner is empowered to appoint a fit person to perform the functions of the trustee of the institution, in

filling up of vacancies in the office of hereditary trustee, until the disability of the hereditary trustee ceases or another hereditary trustee succeeds to

the office or for such shorter term as the Deputy Commissioner may direct.

From the provisions mentioned above, is clear that the Area Committee alone can appoint a non-hereditary trustee of an institution like the

temple concerned in this case and that no other authority excepting the Commissioner in cases where the Area Committee fails to discharge its

duties could exercise the powers of the Area Committee is provided under S. 22(3) of the Act. In cases where the Area Committee fails to

exercise its power or discharge its duties, the Commissioner may authorise the Assistant Commissioner to exercise the functions of the Area

Committee. Vide S. 22(3) of the Act. Admittedly, the respondent was not appointed by the Area Committee. Nor is it contended that the

Assistant Commissioner was authorised by the Commissioner under S. 22(3) of the Act to make the appointment. The appointment made by the

Assistant Commissioner was without jurisdiction.

It is contended that the Deputy Commissioner that exercised his power under S. 54 of the Act appointed the respondent to fill up the vacancy in

the office of the hereditary trustee. It is true that the revision petitioners who claimed to be the hereditary trustees filed an application for declaring

them as hereditary trustees and it was dismissed by the Deputy Commissioner. It is stated that they have filed an appeal and it is pending. From the

reading of S. 54, it is clear that a fit person can be appointed temporarily in cases of vacancy in the office of hereditary trustee till the hereditary

trustee is able to resume his office or another hereditary trustee is appointed. It is not the case of the respondent that he has been appointed

temporarily to fill up the vacancy of the hereditary trustee ; nor is there any indication to show that he has been appointed as such under S. 54 of

the Act.

The respondent has not been appointed by the Area Committee. I, therefore, find that the respondent has not been validly appointed as the

trustee of the Sri Palaniandavar temple.

The next question to be considered is whether the Magistrate exercising his powers under S. 101 of the Act can enquire into the legality or the

propriety of the appointment. It is no doubt true that a Magistrate exercising his powers under S. 101 is in the position of an executing Court; but it

cannot be said his powers ere executive but they are judicial. The Magistrate has to issue notice to the parties concerned and has to satisfy himself

that the order of appointment and certificate produced were true and genuine. This aspect has been fully discussed and decided in the decision

reported in Murugesa Mudaliar v. Ramachandra 1967 M.L.J. Crl. 346. But the Magistrate cannot go into the question whether there was any

illegality in the appointment whether it was duly considered by the authorities concerned following the procedure. But if the appointment itself is

mode without jurisdiction by an officer who is not empowered to appoint, it cannot be said that the appointment is illegal, or irregular; but it is

appointment and is non est. It is contended by the learned Counsel for the respondent that once an order of appointment is produced, there is be

alternative for the Magistrate except to set upon that and the aggrieved party must (sic) to a civil Court. Can it be said that if the opposite party

claims that the order of appointment is forged, the Magistrate cannot (sic) that question? Similarly, can it be (sic) that if an appointment is made by

an officer not empowered to make such an appointment the Magistrate cannot consider it As the Magistrate is exercising his power judicially, he

must satisfy himself that the order of appointment produced before him is true and genuine and that it was passed by the competent authority.

In Prattipati Dandiah v. Venkatarama Dikshitalu (1953) 2 M.L.J. 550 Subba Rao, J., as he then was, on behalf of the Division Bench, in dealing

with S. 87 of Act XIX of 1951, which is in pari materia with S. 101 of the Act, observed as follows in respect of the powers of the Magistrate :

A Magistrate is a judicial officer and the legislature must be presumed to know that be follows the rules of judicial procedure. Before a Magistrate

can direct delivery, the conditions laid down in S. 87 must be complied with. Unless a notice is given to a party affected, the Magistrate may be

misled or the necessary facts may not be brought before him. It may be that the certificate is a forgery; it may be that the petitioner is not a person

who had been appointed by the Commissioner as a trustee. Many circumstances can he visualised where it would be necessary for the aggrieved

party to appear and put forward his case before the Magistrate.

With respect, I agree with the observations of Subba Rao, J., in its entirety.

The learned Counsel for the respondent cited two decisions of this Court reported in Shanmugha Archagar v. Munuswami (1959) 1 M.L.J.

144 and Rathinasamy Moopanar and Another Vs. Subramania Udayar and Others, . In both these cases, the appointment of trustees concerned

was made by the competent an hoity. Ramaswami, J. In the earlier decision observed that it is enough that the order of appointment under S. 87 is

produced before the Magistrate in an application for delivery of possession of the temple and that the powers of a Magistrate under S. 87 are

neither more or less than an executing Court. In the later decision, Kunhamed Kutti, J., following the decision of Ramaswami, J., observed that the

Magistrate has no power under S. 101 of the Act to entertain any objection to the validity, legality or correctness of the order or to the jurisdiction

of the authority issuing it. Of course, this observation appears to be very wide. But it is very significant to note that the trustee in that case was

appointed by the Area Committee which was the competent authority. But that was contended there was that the respondents partook the

character of hereditary trustees and that the Area Committee was not competent to appoint such trustees under S. 49 of the Act. It is true, in the

case the character of the trustee itself was disputed.

The facts of both these cases are different from the facts of the present case. As already observed, the appointment of non-hereditary trustees

in this case was not made by the competent authority, but it was made by the authority who had no jurisdiction and that such appointment is non

est. For the reasons mentioned above, the order of the Magistrate is set aside. The petition is allowed. There will be no order as to costs.