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2010 DIGILAW 3147 (MAD)

Subramanian v. The Administrator cum Scheme Judge, Principal Subordinate Judge, Myladuthurai

2010-07-29

D.HARIPARANTHAMAN

body2010
Judgment :- 1. The Anbanathapuram Vahaiara Charities was established long back. There are five descendent families to the founder. A dispute arose relating to administration of the charity that led to the filing of suit in O.S. No.68/48 under Section 92 CPC before the first respondent-Sub Court. The Sub Court passed a decree in 1951 framing a scheme. The scheme was modified by way of another decree dated 06.04.1960 in O.S. No.17 of 1960. The scheme was further modified by way of another decree dated 22.03.2002 in O.S. No.234/1994. As on date, as per the scheme framed by the first respondent-Sub Court, the administration of the charities is under the control of the Board of Trustees. As per the scheme, there are six trustees in the Board of Trustees and each family could be represented by one trustee and the first respondent-Sub Court could select one member from each family as a trustee. The sixth member is also selected by the first respondent-Sub Court among the members of the five families. This is the Constitution of the board of trustees. 2. A vacancy arose on 28.02.2009 in the board of trustees from the Enathimangalam family. The first respondent called for applications from the Enathimangalam family for the post of trustee. The petitioner herein applied for the same. He was not aware whether anybody else applied. The first respondent directed the petitioner to come for interview on 24.04.2009. Accordingly, he appeared on 24.04.2009 and he produced various documents to show that he belongs to Enathimangalam family and that he is a Doctor by profession. Since there was no other person appeared on 24.04.2009, the petitioner was under bonafide belief that he would be appointed as a Trustee. Since no order was passed, the petitioner has filed the writ petition No.5486 of 2010 to direct the first respondent herein to fill up the vacancy of Trustee from Enathimangalam family in Anbanathapuram Vahaiara Charities, Myladuthurai within a stipulated period. 3. The trust runs three educational institutions namely Arts and Science College, Engineering College, Polytechnic College. Those colleges are administered by AVC Education College Committee. The said Committee is a Society registered under Tamil Nadu Societies Registration Act consisting of eight members. Three members of the Committee are appointed from the six trustees by selection by the first respondent. Three members are graduates from the five families selected by the first respondent. Those colleges are administered by AVC Education College Committee. The said Committee is a Society registered under Tamil Nadu Societies Registration Act consisting of eight members. Three members of the Committee are appointed from the six trustees by selection by the first respondent. Three members are graduates from the five families selected by the first respondent. Two female graduates are selected from five families as members by the first respondent. 4. Three vacancies arose in December 2007 in the committee from the category of three members from the board of trustees. However, the first respondent did not select persons immediately. The first respondent now issued a proceeding dated 01.03.2010 calling for application to fill up the posts of those three vacant posts from the trustees. The petitioner has filed the present writ petition in W.P. No.4934 of 2010 questioning the impugned proceedings D.No.277 dated 01.03.2010 on the file of the first respondent herein. 5. Notice of motion was ordered in both the cases. There is an interim order in W.P. No.4934 of 2010. 6. Heard Mr. K. Goviganesan for the learned counsel appearing for the petitioner and Mr. R. Muthukumaraswamy, Senior Counsel for R2. 7. Learned Senior Counsel appearing for the second respondent in both the writ petitions submits that the writ petitions are not maintainable. The first respondent is a Subordinate Judge and whose action under the scheme framed is put to challenge in these writ petitions. The learned counsel further submits that the aggrieved persons are approaching this Court by filing Civil Revision Petitions under Article 227. 8. In my view, the learned senior counsel is correct in his submission that the proper remedy is to file Civil Revision Petition under Article 227 of the Constitution. However, the learned counsel submits that the writ petitions need not be thrown out the ground and the parties could be advised to approach this Court by way of filing revision petitions under Article 227 in future and to decide the writ petition on merits. 9. Further, the learned senior counsel submits that the second respondent has no objection for filling up the vacancy that arose in Enathimangalam family for the post of trustee in the board of trustee. However, the learned senior counsel submits that the selection from Enathimangalam family as a trustee need not deter, the first respondent from filling up the college committee members. However, the learned senior counsel submits that the selection from Enathimangalam family as a trustee need not deter, the first respondent from filling up the college committee members. According to him, as the vacancies in committee members are not filled up from December 2007, those vacancies could be filled up immediately. In my view, had the first respondent selected three committee members before he called for interview to fill up the vacancy for Enathimangalam family, it could have been a different matter, as the vacancy arose in 2007. But, the first respondent for one reason or other did not fill up the vacancy. The vacancy arose in the trust board relating to Enathimangalam family on 28.02.2009. He initiated action by calling for applications to fill the post and the petitioner also applied pursuant to the notification. As stated above, he also participated in the interview and no order is passed. Hence, in W.P. No.5486 of 2010 a direction to the first respondent is issued to fill up the vacancy in Enathimangalam family relating to the post of trustee within a period of one month. Under such circumstances, a further direction is issued in W.P. No.4934 of 2010 to fill up the vacancy of three college committee members within a period of one month after filling up one post in Enathimangalam family as a trustee. 10. The writ petitions are disposed of with the above directions. No costs. Consequently, connected M.Ps are closed.