Appointment of fit person for performing functions of the disabled trustee.

There is a temple known as Arulmighu Badrakaliamman Temple in Kollampalayam Road, Erode Town. One K.Annamalai Pillai, P.Gurunatha Pillai, Kuppurathinam Ammal and Rajambal Ammal filed an application in O.A.No.100 of 1962 before the Deputy Commissioner, H.R. & C.E. (Administration) Department, Madras-34, under Sec.63(b) of the Tamil Nadu Hindu Reli-giousand Charitable Endowments Act, 1959 (Act XXII of 1959-for short ‘the Act’) praying for a declaration that they had been holding office of the trusteeship of the said temple hereditarily. On enquiry, the Deputy Commissioner, while rejecting the claim of two others, namely, K.Annamalai Pillai and P.Gurunatha Pillai, however, upheld the claim of Kuppurathinam Ammal and Rajambal Ammal and declared them as the hereditary trustees, by his order dated 30.12.1964.

2. Respondent 1-Deputy Commissioner, H.R. & C.E. (Administration) Department, Coimbatore-18 in his proceedings Rc.No.9390/83-A1, dated 27. 1984 however placed Kuppurathinam Ammal under ad-interim suspension, pending enquiry into grave charges and appointed respondent 2-the Executive Officer, Sri Velayuthaswami Temple, Thindalmalai, Erode Taluk, Periyar District as the Fit Person to discharge the functions of the hereditary trustee Kuppurathinam Ammal until further orders. The other hereditary trustee, namely, Rajambal Ammal, against whom no disciplinary action had been initiated, came forward with the present action under Art.226 of the Constitution of India praying for issue of a writ of certiorari to quash the order of respondent-1 in appointing respondent-2 as Fit Person to the said temple, to discharge the functions of the other hereditary trustee Kuppurathinam Ammal.

3. Learned counsel appearing for the petitioner, in placing implicit reliance on an unreported decision of a learned Judge of this Court in M.S.Shanmugham Pillai v. The Assistant Commissioner, H.R & C.E. (Admn.) Department, Tiruchira-palli and others, W.P.No.I6259 of 1990, dated 214.1991, would strenuously contend that the jurisdiction of the Department to appoint a Fit Person would be precluded, especially when the petitioner, who had been declared as a hereditary trustee along with Kuppurathinam Ammal, who had been suspended for some reason or other, is functioning as the hereditary trustee of the said temple and therefore, the appointment of respondent-2 as a Fit Person to the said temple is not sustainable in law.

4. Learned counsel appearing for the respondents in repelling such a submission, would however, place reliance on another unreported decision rendered by the very same learned Judge in M.T.Manikanda Mudaliar v. The Deputy Commissioner, H.R. & C.E. (Admn.) Department, Salem and another, W.P.Na .12810 of 1990, dated 28. 1990, would contend that the Department is having every power to appoint a Fit Person under Sec53(4) of the Act, which says that pending disposal of the charges framed against a trustee, the appropriate authority may place the trustee under suspension and appoint a fit person to discharge the duties and perform the functions of the trustee and in that view of the matter, the appointment of respondent-2 as a Fit Person to the said temple cannot at all be challenged.

5. The tenability or otherwise of the rival submissions of either counsel may now fall for consideration in the arena of discussion. The projection of the submission of learned counsel for the respondents that there is an apparent conflict between the two decisions cannot at all hold water and this aspect of the matter will become crystal clear, if the background or jurisdictional facts are carefully shifted in broad spectrum analysis with so much of care and circumspection, which impelled learned judge to express the respective views in those decisions.

6. In the case of M.S.Shanmugham Pillai v. The Assistant Commissioner, H.R. & C.E. (Admn.) Department, Tiruchirapalli and others, W.P.No. 16259 of 1990, dated 214.1991, there was a hereditary trustee and h