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2010 Supreme(Mad) 2976
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE K. CHANDRU
S.K. Velu & Others
Versus
The Commissioner, Hindu Religious and Charitable Endowment Department, Chennai & Others
A.S.No.1020 of 2007
Decided on: 23-07-2010
For the Appellants:W.C. Tiruvengadam for W.C. Sridhar, Advocates.
For the Respondents:R1 & R2, M.R. Murugesan, GA (HR&CE) & R3 to R5, D. Shivakumaran, Advocate.
Headnote:
HR&CE Act - Hindu Religious and Charitable Endowments Act - Section 70(2) - Appellants filed appeal against judgment and decree made in O.S.No.51 of 1996 - Suit filed to set aside order of the Commissioner of HR&CE Department and scheme covered by the order - Relief of declaration that defendants 3 to 5 are not hereditary trustees of the suit temple - Court analyzed the provisions of the HR&CE Act, the scheme framed under Section 64(1), and the hereditary trusteeship - The court found that the plaintiffs have no right over the temple and no right to question the order passed by the first defendant - The trial court dismissed the suit by a judgment and decree, dated 21.12.2006
Fact of the Case:
The suit was filed by the appellants to set aside the order of the Commissioner of HR&CE Department and the scheme covered by the order, and to obtain a declaration that defendants 3 to 5 are not hereditary trustees of the suit temple. The appellants claimed that the temple is a public temple dedicated to Sri Nallayiamman and is for the sole benefit of the members belonging to 'Semponkulam Gounders'. They alleged that the order passed by the department and the scheme framed by the Deputy Commissioner were inconsistent and repugnant to the HR&CE Act.
Finding of the Court:
The court found that the plaintiffs have no right over the temple and no right to question the order passed by the first defendant. The trial court dismissed the suit by a judgment and decree, dated 21.12.2006.
Issues: The issues framed by the trial court were: a) Whether the relief claimed to set aside the order passed by the first defendant is available to the plaintiffs? b) Whether the plaintiffs are entitled to permanent injunction? c) To what other relief, the plaintiffs are entitled to?
Ratio Decidendi: The court held that the first defendant had refused to invoke his appellate power and since the delay was more than 17 years, the question of filing of any further appeal against such an order will not arise. The court also found that there was a scheme framed after due notice to parties, and therefore, it was unnecessary to exercise suo motu revisional power. The court further found that the scheme was framed only to appoint trustees and not the appointment of hereditary trustees. The court concluded that the plaintiffs have no right over the temple and no right to question the order passed by the first defendant.
Final Decision: The court confirmed the judgment and decree passed by the court below in O.S.No.51 of 1996 dated 21.12.2006, and dismissed the Appeal Suit with costs.
1. Heard Mr. W.C. Tiruvengadam for Mr. W.C. Sridhar, learned counsel appearing for appellants, Mr. M.R. Murugesan, learned Government Advocate *HR&CE) for respondents 1 and 2 and Mr. D.Shivakumaran, learned counsel appearing for respondents 3 to 5.
2. This appeal is filed under Section 70(2) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (Tamil Nadu Act 22 of 1959) (for short HR&CE Act) against the judgment and decree made in O.S.No.51 of 1996, dated 21.12.2006 on the file of the learned Subordinate Judge, Namakkal. Pleadings set was printed and circulated. The original records were also summoned and were perused.
3. The three appellants are the plaintiffs in the suit. The suit was filed to set aside the order of the first defendant, i.e. The Commissioner of HR&CE Department in C.No.89224 of 1994 on 09.11.1995 and to set aside the scheme covered by the order passed by the Commissioner and also for further relief of declaration that defendants 3 to 5 are not hereditary trustees of the suit temple and for grant of consequential permanent injunction restraining them from preventing the plaintiffs with their agnates worshipping the Nallayee Amman deity always and participating in the festival as usual celebrated during the month of Panguni of each year and to prevent them from altering the physical features of Gopuram and the building of the temple as well as to set aside the scheme which was framed by the Deputy Commissioner, HR&CE Department, Coimbatore which was inconsistent and repugnant to the Act.
4. Since parties in the appeal had similar position in the suit, they are referred to here as plaintiffs and defendants. It is the case of the plaintiffs that in Vallipuram village, there is a temple by name Sri Nallayiamman temple, which is dedicated to Sri Nallayiamman. It is a public temple coming under the provisions of the HR&CE Act. It is a community temple and has been in existence for the sole benefit of the members belonging to 'Semponkulam Gounders', who are the direct descendants of Semponkulam of Thottipatti Village. The deity in the question is also the "Kuladeivam" of their community. During the month of "Panguni", on the day of "Uthiram", the plaintiffs and their agnates go to the temple, take out the "Vel", "Karagam" and "Kavadi" in procession to the "Kovil Veedu" in Thottipatti, which is in their possession. Those materials will be installed to offer poojas and are carried out to the river Cauvery at Manappalli on the following day. The deity will be given bath in the river. Again, they take it in procession to the "Kovil Veedu" for offering further worship. Thereafter, they will perform "Mavilakku" pooja in the temple. According to them, it is a custom and practice prevailing for number of years.
5. It was further alleged that defendants 3, 4 and 5 (private respondents herein) had obtained an order under Act II of 1927, i.e. Madras Hindu Religious Endowments Act, 1926 on the ground that the institution was an excepted one. The Board's order was passed on 12.12.1942 in reference No.3739/1942. According to the plaintiffs, the order of Endowment's Board did not carry any hereditary right on respondents 3 to 5 as laid down under Section 6(11) of the present Act 22 of 1959, wherein the term "hereditary trustee" is defined. Not satisfied with the earlier order passed by the department, declaring the temple as an excepted temple, the private respondents have moved the Deputy Commissioner, HR&CE, Coimbatore and filed an application under Section 64(1) of the HR&CE Act and got the scheme framed for the institution in question and also got incorporated a permanent provision in the said scheme recognizing that the hereditary trusteeship belonging to the family of Seeranga Gounder, the fifth respondent herein. An hereditary trustee was appointed to the temple by the scheme framed in O.A.No.226 of 1976 without considering the earlier decision obtained by defendants 3 to 5 under 1927 Act. In or
