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Judgment
Sethuraman, J.—The Plaintiffs in Original Suit No. 180 of 1970 in the Court of the Subordinate Judge of Tiruchirappalli, are the Appellants.
The Plaintiffs filed the suit for setting aside an order of the Commissioner, Hindu Religious and Charitable Endowments, Madras, in Appeal Petition
No. 18 of 1967, dated 22nd November, 1969 and for consequential declaration that they are the hereditary trustees of the temples of Sri
Bhagavathi and Sri Mariamman at Chinnapallipalayam, Musiri Taluk. The Plaintiffs claimed that these temples are public temples and that they are
in management of the temples from time immemorial as, hereditary trustee. While the Plaintiff, where functioning as trustees, in or about the year
1959, the authorities functioning under Tamil Nadu Act XXII of 1959 called for applications for appointment of non-hereditary trustees for the
temple. The first Plaintiff and father of Plaintiffs 2 and 3 and Plaintiffs 4 and 5 filed applications before the Deputy Commissioner, Hindu Religious
and Charitable Endowments, Thanjavur for a declaration of their hereditary trust-ship in Original Appeal No. 7 of 1959. The Deputy
Commissioner, enquired into the matter and held that the Plaintiffs were hereditary trustees. One Karuppa Gounder and others preferred an appeal
to the Commissioner, Hindu Religious and Charitable Endowments, who remanded the matter to the Deputy Commissioner for further enquiry.
Again the Deputy Commissioner passed an order recognising the Plaintiffs as hereditary trustees. Subsequently, Defendants 2 and 3 and another
person preferred an appeal to the Commissioner, Hindu Religious and Charitable Endowments in Appeal Petition No. 18 of 1967. The
Commissioner allowed the appeal and set aside the orders of the Deputy Commissioner. Aggrieved by the said decision, the Plaintiffs filed this suit,
Original Suit No. 180 of 1970.
The first Defendant is the Commissioner, Hindu Religious and Charitable Endowments, One of the points taken in the write statement was that
the suit was bad for want of statutory notice u/s 80 of the Code of Civil Procedure. The learned Subordinate Judge went into this issue as a
preliminary issue and held that a notice u/s 80 was necessary and that its absence was fatal to the maintainability of the suit. This appeal has been
filed by the unsuccessful Plaintiffs contesting this finding on the preliminary issue.
In case this appeal, on the preliminary issue, succeeds then the suit will have to be tried again with reference to the other issues. The only
question that requires to be considered is, whether a notice u/s 80 CPC is necessary before a suit contemplated by Section 70 of Tamil Nadu Act
XXII of 1959 is filed. Section 63 of the said Act confers jurisdiction on the Deputy Commissioner to decide certain disputes. The provision in so
far as it is material, runs as follows:
Subject to the rights of suit or appeal hereinafter provided, the Deputy Commissioner shall have power to inquire into and decide the following
disputes and matters:
(a) whether an institution is a religious institution.
(b) whether a trustee holds or held office as a hereditary trustee.
The rest of the provision is not material for our present purpose, and, therefore, is not quoted. u/s 68, he has to forward a copy of the order to the
Commissioner within a week from the date of his order, inter alia, passed u/s 63. Section 69 provide for an appeal to the Commissioner, within a
period of 60 days from the date of publication of the order or from the receipt of the order by a person aggrieved by the order. The Commissioner
can pass such order thereon as he thinks fit. Sub-clause (3) of Section 69 runs as follows:
Any order passed by the Commissioner on such appeal against which no suit lies to the Court under the next succeeding section, or in which no
suit has been instituted in the Court within the time specified in Sub-section (1) of Section 70 may be modified or cancelled by the Commissioner, if
the order has settled or modified a scheme for the administration of a religious institution or relates to any of the matters specified in Section 66.
This provision contemplates the Commissioner modifying his order only in cases where no suit lies to the Court or where no suit has been instituted
in the Court. Consequently, where a suit has been filed in a civil Court, the Commissioner would have no power to modify his order. Section 70
provides:
(1) Any party aggrieved by an order passed by the Commissioner:
(i) Under Sub-section (1) or Sub-section (2) of Section 69, and relating to any of the matters specified in Section 63, Section 64 or Section 67; or
(ii) u/s 63,...may, within ninety days from the date of the receipt of such order by him, institute a suit in the Court against such order and the Court
may modify or cancel such order, but it shall have no power to stay the order of the Commissioner pending the disposal of the suit.
(2) Any party aggrieved by a decree of the Court under Sub-section (1) may, within ninety days from the date of the decree, appeal to the High
Court.
Section 108 provides that no suit or other legal proceedings in respect of the administration or management of a religious institution or any other
matter or dispute for determining or deciding which provision is made in this Act shall be instituted in any Court of law, except under, and in
conformity with, the provisions of this Act. It is in the light of these provisions that the question as to whether a notice u/s 80, CPC is required has
to be considered.
It may be seen that Section 70 itself does not provide for any notice preceding the suit. I considered this question in Appeal No. 207 of 1974 P.
Kaliyanasundaram and Ors. v. Commissioner H.R. & C.E., (Admn.) Madras-34 and Ors., dated 20th January, 1978, and after discussing the
cases cited it was held that the non-issue of notice u/s 80, CPC was not fatal to the maintainability of the suit. In coming to this conclusion a
decision of a Bench of this Court in Lakshmana v. Commissioner for H.R. & C.E. ILR (1971) 3 Mad. 704, 707 was followed. In that case there
was an application u/s 57(b) of Madras Act XIV of 1951. The Deputy Commissioner held that the office of the trustee of the suit temple was not
hereditary and that the Appellants in that case were not hereditary trustees. They, thereafter, riled an appeal to the Commissioner, but without
success. They, then filed a suit in the City Civil Court, Madras, for cancelling the order of the Commissioner and for being recognised as hereditary
trustees of the temple. The suit was dismissed on the ground that no notice u/s 80, CPC had been given prior to the institution of the suit. When the
matter came before Sadasivam and V. Ramaswami J, they pointed out that,
no notice u/s 80, Code of Civil Procedure, is required in respect of a statutory suit to set aside or cancell the order of the Commissioner under the
provisions of the Act.
Even on the earlier occasion when I dealt with a similar matter, the decision of Ismail J., in T.K. Santhanagopala Chettiar and Others Vs.
Thimmi M. Seetharama Chettiar and Others, was cited. That was an appeal against a judgment in a suit for declaration that the temple and its
properties exclusively belonged to Pattusaluvar community, residents of a particular village, and for directing the Defendant to put the Plaintiffs in
possession of the properties and the temple. In the written statement filed by the Defendant a plea was raised as to the maintainability of the suit as
no notice had been given u/s 80, Code of Civil Procedure. The trial Court agreed with the preliminary objection. The matter was taken on appeal
to the Court of Subordinate Judge of Kumbakonam, who set aside the judgment of the trial Court and remanded the suit for fresh disposal
according to law. In remanding the case the learned Subordinate Judge expressed his opinion that a notice u/s 80 CPC was not necessary. In the
appeal to this Court, the contention that was taken on behalf of the Appellant is set out at page 46 and it is as follows:
It is not denied before me that, if the Commissioner is a Government servant, Section 80 of the Code of Civil Procedure, will apply. However the
argument of Mr. Govindachari is that when the Commissioner is functioning in relation to matters as the one in question he is a judicial officer and
consequently no notice to him is necessary.
After referring to Section 110 of Act XXII of 1959 the learned Judge pointed out that when the Commissioner or Deputy Commissioner makes an
inquiry, he is deemed to be a person judicially acting only for the purpose of the Judicial Officers Protection Act, 1850, and that this protection is
available to the Commissioner or Deputy Commissioner only when he is conducting an inquiry or hearing an appeal under Chapter v. or Chapter
VI of the Act. After going into the question, whether the Commissioner is a corporation sole and examining a decision of the Supreme Court on the
point, it was held that the Commissioner while functioning under the provisions of the Act functioned only as a public officer or Government
servant, and as such, the provisions contained in Section 80, CPC would apply to him. The question considered in that case was wholly different.
With reference to this decision I pointed out in the unreported judgment (Appeal No. 207 of 1974, dated 20th January, 1978) mentioned
already, as follows:
In that case, the suit was for a declaration that the temple and its properties belonged to Pattusaluvar community of a particular village and for
possession and accounts. In effect, the prayer was that the temple did not come within the scope of Act XXII of 1959. Having regard to the
character of the suit u/s 70 of the Act, I do not consider that the decision would have any scope for application in the present case.
The judgment of Ismail J., was affirmed in appeal in Santhanagopala v. Seetharama ILR (1974) 3 Mad. 222. But the objection as regards the
applicability of Section 80, CPC was not gone into, as the matter was conceded before the Division Bench. The suit in the present case being one
u/s 70 of the Act which gives a special remedy to a person aggrieved by the order of the Commissioner, I do not find that, there is any need to
issue a notice u/s 80, Code of Civil Procedure. The remedy takes the form of a civil suit, so that evidence may be recorded and issues of fact also
determined by the civil Court.
In the same case I pointed out, why Section 80 would not be attracted in cases of such suits in the following passage:
Where the statute itself provides for a suit as a remedy against certain orders passed by the departmental authorities, the need for s notice u/s 80,
Code of Civil Procedure, would not arise. It is well-settled that a notice u/s 80, CPC is required so as to give the public officer an opportunity to
reconsider his legal position and to make amends or settle the claim if so advised, without litigation. This requirement would be impossible of
compliance by the public officer in a case like this, even, if a notice u/s 80 was given. He is not conferred with any power to review his own order
on the basis of any such notice and therefore, the notice u/s 80, CPC would merely delay the proceeding statutorily intended to be taken. I
consider that where a statute itself requires for setting aside an order a civil suit to be filed, the provisions of Section 80, CPC would have no
scope for application. The view taken in Lakshmana v. Commissioner for H.R. & C.E. ILR (1971) 3 Mad. 704 would directly apply to a case like
this and the same view has also been taken by the Andhra Pradesh High Court. The result is, I do not find any substance in the petition based on
the non-issue of the notice u/s 80, Code of Civil Procedure.
The learned Counsel for the Commissioner brought to my notice a decision of the Supreme Court in State of Maharashtra and Another Vs. Shri
Chander Kant, . In that case a suit was filed against the State claiming that an order, dated 1st March, 1955 declaring a particular trust to be a
public trust be set aside. The plaint was filed u/s 8(1) of the Public Trusts Act, 1951 enacted by the Madhya Pradesh Legislature. The suit was
filed against the State of Madhya Pradesh and the Registrar of Public Trusts, Amraraoti. No notice u/s 80, CPC was given before the institution of
the suit. The Defendant took the plea that the suit was liable to be dismissed by reason of absence of such a notice. The Supreme Court held that
the Registrar was a public officer and that Section 80 CPC was attracted whenever any suit was filed against a public officer in respect of any act
purporting to be done by such public officer, in his official capacity. The question of the Commissioner or Deputy Commissioner being a public
officer or not is not in issue here. I do not find that the suit in that case was one filed for setting aside an order under a provision similar to Section
70 of the Tamil Nadu Act XXII of 1959. Section 70 provides for a civil suit being filed so that the civil Courts will be in seizin of the matter and
can go into the propritey or legality of the proceedings. There is a further provision of appeal to the High Court. The nature of the jurisdiction u/s
70 is such that it cannot be equated to a suit against a public officer with reference to which notice u/s 80 is contemplated. It is also necessary to
bear in mind the background for the issue of such a notice which has earlier been referred to. As pointed out in Mullet on the Code of Civil
Procedure, the object of the notice is to give the public officer an opportunity to reconsider his legal position and to make amends or settle the
claim, if so advised, without litigation. Thus the object of the notice is to prevent the litigation, if possible. In the present case, the Commissioner
could not have prevented the litigation, because there is no power conferred on him to review his own order and his order is subject to a challenge
in a civil suit. In these circumstances, I do not find that, the absence of notice u/s 80 CPC is fatal to the maintainability of the suit. The appeal is
accordingly allowed and the suit will be heard with respect to the rest of the issues by the trial Court. There will be no order as to costs.