Power of Area Committee to appoint trustee.

This is a petition under Article 226 of the Constitution to quash the Resolution, dated February 18, 1960, of the Area Committee for Madras appointing three non-hereditary trustees for Sri Agatheeswarar and Prasanna Venkatesa Perumal temples, Nungambakkam. The petitioners are the wife and minor son respectively of the previous holder of the hereditary office of trusteeship in the temples. That the office of the trustee is hereditary appears to have been recognised by this Court in C.S. No. 656 of 1948 in which a scheme for management of the temples was settled. Respondents 2 to 4 are the non-hereditary trustees appointed as such by the said Resolution. Against the Resolution of the Area Committee, the petitioners would appear to have filed a revision to the Commissioner for Hindu Religious and Charitable Endowments but unsuccessfully. In W.P. No. 855 of 1958, this Court directed by a writ of mandamus that the Commissioner should recognise the first petitioner as the hereditary trustee in the place of her husband, who, it is said had been removed from the office on certain grounds which are not relevant to the present purposes.

The appointment of respondents 2 to 4 is impugned in this Court on two grounds: (1) that the office of the trusteeship in these temples being hereditary there is no power provided for the Area Committee by the Madras Hindu Religious and Charitable Endowments Act, 1959, to appoint them and (2) that even assuming that the Area Committee had power under clause (2) of the Scheme settled by this Court, inasmuch as by a single resolution three non-hereditary trustees were appointed while that clause permitted only two, the Resolution in question is void in its entirety. The first ground involves an examination of the relative provisions of both Madras Act (XIX of 1951) and Madras Act (XXII of 1959). For the purpose of appointment of trustees, temples have been divided into those in which the office of a trustee is hereditary and those in which such office is not hereditary There is a further bifurcation based on the income of the temples, as those listed and those not listed. In the context of the classification just mentioned have to be understood the scope and ambit of the relevant provisions relating to appointment of trustees. In the old Act, section 6 defined an Area Committee and section 13 prescribed its strength and jurisdiction. These provisions have been repeated in the new Act as well, without any material change. Section 39 of the old Act provided for the power of the Commissioner to appoint trustees for institutions having no hereditary trustee and those having a hereditary trustee. Sub-section (1) of that section related to the former kind of institutions and sub-section (2) to the latter kind. The Commissioner’s power of appointment of trustees to both kinds of temples was made applicable only to what is termed as listed temples Section 41 of the old Act gave power to the Area Committee to appoint trustees as is vested in the Commissioner in the case of religious institutions referred to in section 39. Because sub-sections (1) and (2) of section 39 required that not less than three and not more than five persons should be appointed as trustees the Proviso to section 41 (1) had been inserted enabling the Area Committee to appoint a single trustee in the case of institutions having no hereditary trustee. If the matter stood there, there would have been no difficulty in upholding the Resolution of the Area Committee in the instant case. But inasmuch as the Resolution was passed after the new Act had come into force, it has become possible for the petitioners to contend in the light of the new provisions, that the Area Committee has ceased to have power to appoint non-hereditary trustees in a non-listed temple having a hereditary trustee. This argument is entirely rested upon the omission in section 49 (1) of the new Act to refer to sub-section (2) of section 47. Sub-sections (1) and (2) of s