Subramaniam v. The Joint Commissioner, Hindu Religious & Charitable Endowment Board
2006-06-12
FAKKIR MOHAMED IBRAHIM KALIFULLA, P.MURGESEN
body2006
DigiLaw.ai
Judgment :- F.M. Ibrahim Kalifulla, J. 1. The appellant is aggrieved against the order of the learned single Judge in and by which the appellants writ petition challenging the order of the first respondent dated 17.6.2005 and the consequential order dated 12.7.2005 came to be rejected by holding that the appellant has a right of appeal under Section 54(4) of the Tamil Nadu Hindu Religious and Charitable Endowments Act 1955 (hereinafter called as ‘the Act’). 2. Ms. R. Krishnapriya, learned counsel for the appellant contended that the impugned order dated I 7.6.2005 which deprived the appellants right to continue as a trustee of the second respondent temple was not even served on the appellant, that only the consequential order dated 12.7.2005 alone was served and therefore, on this ground alone the orders are liable to be interfered with. 3. The appellant has filed a copy of the order dated 17.6.2006 along with the material papers filed in the writ petition as well as in this writ appeal. In such circumstances, on that hyper-technical ground, we do not find any scope to entertain the appellants writ petition and examine the correctness of the orders impugned therein. 4. The learned counsel for the appellant placed heavy reliance upon the Division Bench Judgment of this Court reported in 1990 Writ L.R 163= 1990 2 L.W. 91 ( Chinnaswamy Gounder, S.S. v. The Assistant Commissioner, etc. ) to contend that the appellant is entitled to challenge the impugned proceedings in the writ petition. We are not in a position to accept the said contention inasmuch as we find in the said decision the Division Bench has noted the factual position as under in para 4. “4. Since the writ petition had been dismissed in limine, the State had no opportunity to file any counter. However, the learned Government Pleader by reference to the record, did not dispute the factual position as emerging in this case viz., that by order dated 4.6.1985 the appellant was appointed as a Fit Person and directed to continue till a new Board of Trustees is appointed and charge taken from him. That contingency did not arise as no new Board of Trustees was appointed. The factual position that the appellant was replaced by Respondent No. 2 also as a Fit Person only without being afforded any opportunity of showing cause against his removal is also not disputed.
That contingency did not arise as no new Board of Trustees was appointed. The factual position that the appellant was replaced by Respondent No. 2 also as a Fit Person only without being afforded any opportunity of showing cause against his removal is also not disputed. That being the position, we are unable to eschew the observations of the learned Single Judge while dismissing the writ petition. The appellant could either be removed with the appointment of the Board of Trustees after charge was taken from him, or in the event it was found that he was not fit any longer to continue in office, he could be removed and another Fit Person appointed; but for following that course, the rule of audi alteram partem had to be observed. It is no longer a moot question that the principles of natural justice have to be read into even the statutes where civil rights are involved. Since the appellant was removed from the Office of a Fit Person without being afforded any opportunity to show cause, the order impugned in the writ petition bearing No. Na.Ka.713/85-A3 dated 23.12.1986 cannot be sustained” As referred to by the Division Bench therein, the appointment of the appellant therein as a fit person was dependent upon the contingency, namely, till the new Board of Trustees was appointed who was empowered to take over charge from him. Even before that contingency arose, namely, the new Board of Trustees was appointed, the appellant therein was unceremonially removed and another person was appointed as a fit person and that too without affording any opportunity to the appellant therein. In the light of the special facts involved in the said case, the Division Bench was pleased to set aside the order appointing another person as a fit person in the place of the appellant therein. Since the facts involved in that case materially differ from the facts in this case, we do not find any scope to apply the ratio of the said decision to the facts of this case. 5. The next contention is that the appellant by virtue of the terms of the scheme decree was entitled to be retained as a trustee representing a particular family by way of succession and that the failure to recognise such a right of the appellant would vitiate the order dated 17.6.2005.
5. The next contention is that the appellant by virtue of the terms of the scheme decree was entitled to be retained as a trustee representing a particular family by way of succession and that the failure to recognise such a right of the appellant would vitiate the order dated 17.6.2005. Such a contention of the appellant is as regards the merits of the orders impugned in the writ petition and in this writ appeal for which a statutory remedy of appeal under Section 54(4) of the Act has been made available to the appellant to be preferred before the Commissioner. Therefore, the appellant can urge all those contentions as regards the defects in the orders impugned in the writ petition while preferring the appeal before the Commissioner. On that score, the appeal remedy available to the appellant cannot be ignored and the writ petition cannot be entertained. Since it is contented that the copy of the order dated 17.6.2005 was not duly served on the appellant and in order to enable the appellant to work out the appeal remedy more effectively by invoking section 54(4) of the Act, we only deem it proper to permit the appellant to prefer the appeal before the Commissioner within one month from this date. 6. The order of the learned single Judge in rejecting the writ petition on the ground of availability of alternate remedy cannot therefore be interfered with. The writ appeal fails and the same is dismissed. No costs. Consequently, WAMP (MD) No. 214/2006 is also dismissed.