V. Sambandam and Another vs S.T.S.V. Kandasami Padayachi and Others

K. Veeraswami, C.J.—This petition under Article 227 of the Constitution is to set aside an order of the Additional First Class Magistrate,

Mayuram, declining to give a direction for delivery of accounts and records of Sri Subramaniswami Koil Sola, Perunthottam, Sirkali Taluk, to the

two of the three trustees who were the applicants before him. The third respondent was impleaded in the application, as he would not join with the

other trustees, but in fact resisted delivery of the records and accounts. On a curious view, which we do not accept as correct, of Section 101 of

the Madras Hindu Religious and Charitable Endowments Act, 1959, the First Class Magistrate held that, in the absence of a certificate, there

could not be delivery of the records and accounts of the temple. When the petition came up before Alagiriswami, J., he considered that Murugesa

Mudaliar v. Ramachandran (1967) 1 M.L.J. 379, required re-consideration. Krishnaswamy Reddy, J., in that case was of the view that the

Magistrate of the First Class mentioned in Section 101 of the Act was intended to act only as a persona designata and not as a Court and that,

therefore, no revision under sections 435 and 439 of the Code of Criminal Procedure lay against his order. The learned Judge was of further

opinion that in such a case the only remedy available would be under Article 227 of the Constitution, Krishnaswamy Reddy, J., in taking that view

purported to follow Dargha Committee v. State of Rajasthan (1962) 1 S.C.J. 583, Alagiriswami, J., found that T. Alagappa Goundar Vs. P.A.

Karuppa Chetty Goundar, , and Doraiswami Reddiar Vs. Gurunatha Iyer and Others, , each of which was decided by Somasundaram, J., took a

contrary view on the identical question and as to Dargha Committee v. State of Rajasthan (1962) 1 S.C.J. 583, he was inclined to think that it was

distinguishable on the ground that the Supreme Court was there dealing with the function of a Magistrate, which was of a ministerial character.

Reference also was made by Alagiriswami, J., to Bathula Krishna Brahmam and Others Vs. Daram Chenchi Reddy and Others, , in which a

Division Bench shared the view in T. Alagappa Goundar Vs. P.A. Karuppa Chetty Goundar, .

The question whether, where by a statute a duty of deciding a specified matter is cast on a Magistrate, he acts in discharge of such duty as a

persona designata or as a Court would depend on the language used by the statute, not merely the character of the function which he is called upon

to exercise in performing that duty. Where a Court consists of more Judges than one and the statute makes a specific reference to one of the

Judges by distinguishing words, there should be no difficulty in the nomination being by designation of the particular Judge. But if, on the other

hand, there is indication in the statutory provisions that though the reference is to a Presidency Magistrate or any Magistrate, he is identified with

reference to his powers under the Criminal Procedure Code and the jurisdiction which he exercises thereunder to his particular territorial

jurisdiction, it is obvious, in our view, that the indication is that he would act as a Court, not as a persona designata. Section 101 of the Madras

Hindu Religious and Charitable Endowments Act, 1959, seems to us to be of the latter category. After setting out the circumstances and the

requisites for ordering an application under the section, it goes on to say "" any Presidency Magistrate or any Magistrate of the First Class in whose

jurisdiction such institution or property is situated."" The reference to the First Class powers makes it manifest that they are First Class powers

available to the Magistrate under the Code of Criminal Procedure; so too, when the section refers to his jurisdiction within which the institution or

property covered by the application is situate, it again means the territorial jurisdiction of the Court of the Magistrate of the First Class. A

Magistrate acting as a persona designata is not usually identified with reference either to the extent of the powers available to him under the Code

of Criminal Procedure, or with reference to his territorial jurisdiction within which the property he is called upon to deal within the application is

situate, These two facts, to our minds, point to the intention that the Magistrate of the First Class referred to is in his capacity as a Court of the

Magistrate of the First Class. Also we are of opinion that the function that he is called upon to perform in disposing of an application u/s 101 is

judicial in character. He has to find out whether there has been an appointment of the trustees by the proper officer having jurisdiction to make the

appointment and whether the applicant or applicants are resisted by the persons specified in the application and further he has also to satisfy

himself that the person offering resistance is not one claiming in good faith to be in possession on his own account or on account of some person

not being a trustee, office holder or servant. In the matter of delivery also, when he makes a direction therefor, he has to invoke his powers which

can only be under the Code of Criminal Procedure. These considerations we are inclined to think justify our view that the function of the

Magistrate u/s 101 is judicial and not administrative.

On the view we have just expressed, it will follow that Dargha Committee v. State of Rajasthan (1962) 1 S.C.J. 583, is distinguishable and is

not of assistance in construing Section 101. We may also observe that, even as a general proposition, it is correct to proceed upon the view that

where a duty of a particular character is cast upon an established Court, it imports that the ordinary incident of the procedure of that Court are to

attach. National Telephone Company Limited v. Postmaster General L.R. (1913) A C. 546 and Guruvammal v. Arumuga Padayachi 61 M.L.J.

894, do lend strength to the view. A number of other decisions have been referred to both in Bathula Krishna Brahmam and Others Vs. Daram

Chenchi Reddy and Others, , and in the referring judgment of Alagiriswami, J., But we do not think it necessary to refer to them. With respect, we

find ourselves in agreement with Bathula Krishna Brahmam and Others Vs. Daram Chenchi Reddy and Others, and T. Alagappa Goundar Vs.

P.A. Karuppa Chetty Goundar, , Murugesa Mudaliar v. Ramachandran (1967) 1 M.L.J. 379, can, therefore, no longer hold the field. That means

the right remedy of a person aggrieved against an order made u/s 101 is to ask for its revision under sections 435 and 43.9 of the Code of

Criminal Procedure.

Though the petition before us, as we mentioned at the outset, was filed under Article 227 of the Constitution, perhaps in view of the observation

in Murugesa Mudaliar v. Ramachandran (1967) 1 M.L.J. 379, the correctness of which we have not accepted, we are, in the interests of justice,

inclined to convert this petition into a criminal revision case. On the merits, we are satisfied that the Court below should have ordered the

application. The Magistrate took a technical view in which he went wrong as to the requirement of a certificate even in respect of a request of a

direction for delivery of accounts and records.

The revision petition is allowed.