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2011 DIGILAW 4455 (MAD)

K. Ambika v. R. Ramalingam

2011-11-09

D.MURUGESAN, K.K.SASIDHARAN

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Judgment :- D. MURUGESAN, J. 1. As the challenge in both the writ appeals is common, they are taken up together for disposal by this order. The question raised in these writ appeals is as to whether the words "due regard to the claims of persons belonging to the religious denomination for whose benefit the institution concerned is chiefly intended or maintained" employed in Section 51(b) and in the proviso to Section 64(2) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 would mean that the persons from other communities are excluded for consideration of appointment as non-hereditary trustee or trustees in respect of a public temple. 2. A scheme was framed in respect of Arulmighu Angala Parameswari and Kasi Vishwanathar Temple, Choolai, Chennai by the scheme decree of this Court dated 26.4.1926 in C.S.No.984 of 1922. Clause (1) of the said decree states that the said temple is a public temple, where the public have a right to worship. Clause (10) of the schedule to the scheme states that "the Dharmakarthas shall be the members of the Viswabrhmha community residing in Madras and they shall be three in number". 3. At the instance of one N.Kandasamy Achari and six others, the said scheme was modified in the year 1961, whereby clause (3) provided that the appropriate authority shall appoint trustees not exceeding five in number and while making such appointment, the authority shall give due regard to the claims of Viswabrhmha community in terms of Section 51 of the Hindu Relgious and Charitable Endowments Act, 1959. That scheme was approved by the Joint Commissioner, Hindu Religious and Charitable Endowments Department in his order dated 25.8.99 in O.A.No.1 of 1996 when the same was questioned by one B.Natesa Achari and eight others. By the above proceedings, the total number of trustees shall not exceed five and in the appointment of trustee or trustees, due regard shall be given to the claims of Viswabrhmha community people in terms of Section 51. 4. In order to appoint the non-hereditary trustees for the temple in question, a notification dated 16.10.2009 was issued by the Joint Commissioner of Hindu Religious and Charitable Endowments Board. In the said notification, applications were invited only from the persons belonging to the Viswabrhmha community. 4. In order to appoint the non-hereditary trustees for the temple in question, a notification dated 16.10.2009 was issued by the Joint Commissioner of Hindu Religious and Charitable Endowments Board. In the said notification, applications were invited only from the persons belonging to the Viswabrhmha community. The said notification was questioned by Thiru R.Ramalingam, the first respondent in both the appeals on the ground that as per the scheme, there is no exclusion of the members of other Hindu communities for being considered for appointment of non-hereditary trustee or trustees and inasmuch as the notification gives preference to the members of Viswabrhmha community alone, it is bad, as the temple is a public temple. The said contention was accepted by the learned Judge, who ultimately set aside that portion of the notification indicating preference to the members of Viswabrhmha community and allowed the writ petition with a direction to the official respondents to consider the claims of other applicants as well. Aggrieved by the said order, one K.Ambika and the Department have preferred these writ appeals. 5. We have heard the respective learned counsel for the parties. 6. By virtue of the provisions of Section 64 of the Hindu Religious and Charitable Endowments Act, 1959 (hereinafter referred to as "the Act"),the Joint Commissioner or the Deputy Commissioner is entitled to settle schemes. In terms of the proviso to Section 64(2), while making such appointment of trustee or trustees, due regard shall be had to the claims of persons belonging to the religious denomination for whose benefit the institution is chiefly intended or maintained. Section 51 of the Act deals with the claims of certain persons to be the trustees. Clause (b) of Section 51, which is relevant for our purpose, contemplates that the Government, the Commissioner, the Joint Commissioner, the Deputy Commissioner or the Assistant Commissioner in making the appointment of trustees under Section 47 or Section 49 or Section 49-A, as the case may be, shall have due regard to the claims of persons belonging to the religious denomination for whose benefit the institution concerned is chiefly intended or maintained. 7. 7. Mr.W.C.Thiruvengadachari, learned counsel for the appellant in W.A.No.317 of 2010 would submit that the words "due regard to the claims of persons belonging to the religious denomination for whose benefit the institution concerned is chiefly intended or maintained" employed in both the above provisions should be considered with reference to the emphasis made in the provision to the effect. Inasmuch as the temple in question is chiefly intended or maintained for the benefit of Viswabrhmha community persons for whose benefit the religious denomination is chiefly intended or maintained, they are entitled to preference in the appointment of non-hereditary trustee or trustees. 8. On the other hand, Mr.K.M.Vijayan, learned senior counsel for the first respondent/writ petitioner would submit that the words "due regard" do not mean that the persons belonging to other Hindu communities are to be excluded for consideration of appointment as non-hereditary trustee or trustees to the temple in question. Hence, he would submit that the order in the writ petition requires no interference. 9. We have considered the submissions. The original scheme made in the year 1926 declares the temple to be a public temple, where the public have a right to worship and the total number of trustees shall not exceed three in number. When the scheme was subsequently modified in the year 1963, the declaration that the temple is a public temple was maintained and the said fact is also not disputed by the appellants and the first respondent, as the temple is even now treated as a public temple. So far as the number of trustees which originally stood as not more than three, was increased to five in number. The said scheme was approved by the Joint Commissioner in the year 1999. The scheme was modified in terms of the provisions of Sections 51 and 64 and it was made clear that while appointing the trustee or trustees, due regard should be given to the claims of persons belonging to Viswabrhmha community. The said scheme was approved by the Joint Commissioner in the year 1999. The scheme was modified in terms of the provisions of Sections 51 and 64 and it was made clear that while appointing the trustee or trustees, due regard should be given to the claims of persons belonging to Viswabrhmha community. A reading of both the scheme of the year 1926 and the modified scheme of the year 1963, as approved by the Joint Commissioner in the year 1999, does not indicate that the appointment of nonhereditary trustee or trustees was restricted only to the persons belonging to Viswabrhmha community, but was modified to give due regard to the persons belonging to other communities, which modification is only in conformity with the above two provisions of the Act. 10. The question is as to whether by virtue of the above provisions and in the light of the modified scheme, could it be contended that only the persons belonging to Viswabrhmha community could be appointed as trustee or trustees and thereby other persons are excluded or the Viswabrhmha community should be given preference. The words "due regard" employed in the provisions of the Act, in our opinion, would mean that while there are number of applicants for appointment of trustee or trustees, the persons from Viswabrhmha community shall be given due regard for consideration. These provisions do not mean that they have got an exclusive preference or march over the claims of persons belonging to other communities. Preference is one thing and giving due regard is another thing. In the event number of applications consisting of both the persons belonging to Viswabrhmha community and the persons belonging to other communities for the appointment of trustees are received, if only those belonging to Viswabrhmha community should be given preference, it will result in excluding the consideration of the applicants from other communities. In our opinion, it is not the purport of the scheme. Even though the scheme of the year 1922 provided an exclusive right for persons belonging to Viswabrhmha community to be appointed as trustees, the said clause required modification in view of the provisions of Sections 51 and 64 of the Act, which came into force in the year 1959. In our opinion, it is not the purport of the scheme. Even though the scheme of the year 1922 provided an exclusive right for persons belonging to Viswabrhmha community to be appointed as trustees, the said clause required modification in view of the provisions of Sections 51 and 64 of the Act, which came into force in the year 1959. Hence, the scheme was modified in the year 1961 only to bring the clauses of the scheme in tune with the provisions, as none of the clauses in the scheme can be contrary to the provisions of the Act. The modification has a definite purpose in not providing exclusive right to persons belonging to Viswabrhmha community alone. In the event such exclusive preference is given, it would be contrary to the scheme itself and the notification giving such preference would be therefore bad. Therefore, the notification giving preference to Viswabrhmha community persons to be appointed as non-hereditary trustee or trustees has been rightly held by the learned Judge to be not in accordance with the scheme. Of course, while appointing the trustee or trustees, the Joint Commissioner or the Deputy Commissioner, as the case may be, shall give due regard to the persons belonging to Viswabrhmha community. While considering the applications received from the members of Viswabrhmha community and the other communities, he has to make a decision to choose any one of them by giving due regard to the persons belonging to Viswabrhmha community. In case if he finds that a person belonging to Viswabrhmha community requires no consideration for the reasons so arrived by him, he need not necessarily appoint him as a trustee solely on the ground that he should give due regard. He should also consider the claims of persons belonging to other communities. If any other interpretation to either the provisions of the Act or the scheme is given, it would result in the only conclusion of excluding the persons belonging to other communities. In our view, that is not the object of the scheme. For the said reasons, we find no infirmity in the order of the learned Judge setting aside that portion of the notification. Accordingly, both the writ appeals fail and they are dismissed. No costs.