S.R.M. Ramamoorthy Poosari vs The Secretary to Government, Hindu Religious and Charitable Endowments Department and Others

M. Jeyapaul, J.—The writ petition is filed seeking a direction to the respondents to the Secretary to the Government, Hindu Religious and

Charitable Endowments Department, Chennai, to consider the representation of the petitioner dated 23.03.2005 and conduct enquiry as per law.

The learned Counsel for the petitioner would contend that the fifth respondent has been appointed by the third respondent by his proceedings in

Pa.Mu. No. 7824/2001/A1 dated 17.01.2002 completely ignoring the criminal case as against the fifth petitioner and the observation he had made

with reference thereto in the earlier proceedings passed by him in Na.Ka. No. 4659/2000/1/A1 dated 11.01.2002. The Petitioner would contend

that the fifth respondent who had reportedly misappropriated the funds of the institution even before he was appointed as hereditary trustee has

sought for removal from the hereditary trusteeship. He is now occupying the position on the strength of the order of appointment passed by the

third respondent, he submits further.

The learned Senior Counsel appearing for the petitioner would submit that the Government is the appropriate authority to remove the fifth

respondent from the hereditary trusteeship u/s 53 of the Hindu Religious and Charitable Endowments Act, 1959 (Hereinafter referred to ""the

Act""). Therefore the Government should be directed to conduct the enquiry on the basis of the representation submitted by the petitioner and

remove him forthwith from the trusteeship invoking Section 53 of the Act.

The learned Special Government Pleader appearing for respondents 1 to 4 would contend that the petitioner has virtually challenged the

appointment of the fifth respondent as hereditary trustee on the sole ground that he had not got qualification for being appointed as hereditary

trustee. Therefore, the petitioner should have approached the Joint Commissioner as adumbrated u/s 26(3) of the Act. It is his further submission

that the third respondent, the Joint Commissioner has every authority to unseat the fifth respondent if at all the allegation of disqualification stands

proved.

The learned Counsel appearing for the fifth respondent would contend that the petitioner has come out with wild allegation as against the fifth

respondent. It is his further submission that the third respondent having weighed the qualification put forth by the fifth respondent has rightly

appointed him as hereditary trustee. Challenge as to the hereditary trusteeship on the ground that the person appointed had incurred disqualification

can be challenged only u/s 26(3) of the Act. Therefore it is not fit case to direct the first respondent to consider the representation of the petitioner,

it is further contended.

The entire facts found in the Writ Petition would disclose that the petitioner has mounted attack on the appointment of the fifth respondent as

hereditary trustee on the sole ground that he had already incurred disqualification for appointment as hereditary trustee. The appropriate authority

namely the Government has the power to suspend, remove or dismiss the trustee in a case where a hereditary trustee who was already appointed

has ceased to profess the Hindu Religion; failed to discharge the duties cast upon him; disobeyed the lawful orders issued under the provisions of

the Act; neglected his duty or committed any malfeasance, misfeasance or breach of trust and misappropriation of funds, or dealt improperly with

the properties of the institution etc., But the appropriate authority cannot decide whether a hereditary trustee who was appointed to the institution

suffered from any disqualification. It is only the Joint Commissioner, as rightly point out by the learned Counsel for the respondents, has the

authority u/s 26(3) of the Act to go into whether a person who had been appointed as hereditary trustee had already incurred disqualification. If he

finds that a trustee who had already been appointed as hereditary trustee has incurred disqualification, he has the power to unseat him.

Therefore this Court holds in the above facts and circumstances of the case that it is only the third respondent Joint Commissioner, Hindu

Religious and Charitable Endowments Department who is the appropriate authority to decide whether the fifth respondent has been appointed as

hereditary trustee inspite of the alleged disqualification he had incurred.

It is found that the petitioner has already submitted a representation dated 23.03.2005 before the third respondent who had not so far disposed

of such representation made by the petitioner. Therefore the third respondent is directed to take up the representation of the petitioner dated

23.03.2005 and conduct an enquiry thereon after giving notice to the parties concerned and pass appropriate orders on merits and in accordance

with law, weighing all the documents produced supporting the allegations found in the representation of the petitioner within two months from the

date of receipt of a copy of this order.

The writ petition is disposed of accordingly. Consequently, connected W.P.M.P. (MD) No. 9034 of 2005 is closed. No costs.