Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1993 Supreme(Mad) 262

High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE MISHRA & THE HONOURABLE MR. JUSTICE ARUMUGHAM
Tholappa Iyengar, alias Alagar Iyengar
Versus
The Executive Officer, Kallagar Devasthanam, Alagarkoil, Madurai
Letters Patent Appeal Nos. 168 of 1991, 29 of 1991 & 206 of 1992
Decided On :Decided on : 30-04-1993

Advocates Appeared:
For the Appellant:V. Krishnan, R. Balachander, Prabha Sridevan, T.R. Mani, V. Balasubramaniam, Advocates.
For the Respondent:R. Swaminathan, Additional Govt. Pleader, P. Narasimhan, SGSC, Bhaskaran, Additional Govt. Pleader, V. Srinivasan, Advocate.

A suit under Section 70(1) of the Endowments Act is maintainable without serving a notice under Section 80 of the CPC upon the Commissioner or the Deputy Commissioners, who are impleaded as party defendants, since they are not sued in their individual capacity but are sued as authorities who exercised their statutory powers and adjudicated the dispute either as the original authority empowered to decide a dispute or as the appellate authority.

Headnote:
The judgment deals with the issue of whether a suit under Section 70 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (hereinafter referred to as 'the Endowments Act') is maintainable without serving a notice under Section 80 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the CPC').
Fact of the Case:

The appellants, who were plaintiffs in the suit, filed a suit under Section 70(1) of the Endowments Act, seeking to set aside or modify an order passed by the Commissioner under Section 69 of the Endowments Act. The respondents, who were defendants in the suit, contended that the suit was not maintainable as no notice under Section 80 of the CPC had been served upon them.
Finding of the Court:

The court held that a suit under Section 70(1) of the Endowments Act is maintainable without serving a notice under Section 80 of the CPC upon the Commissioner or the Deputy Commissioners, who are impleaded as party defendants, since they are not sued in their individual capacity but are sued as authorities who exercised their statutory powers and adjudicated the dispute either as the original authority empowered to decide a dispute or as the appellate authority.
Issues: 1. Whether a suit under Section 70(1) of the Endowments Act is maintainable without serving a notice under Section 80 of the CPC? 2. Whether the Commissioner or the Deputy Commissioners, who are impleaded as party defendants in a suit under Section 70(1) of the Endowments Act, are sued in their individual capacity or as authorities who exercised their statutory powers?
Ratio Decidendi: 1. The court held that a suit under Section 70(1) of the Endowments Act is maintainable without serving a notice under Section 80 of the CPC upon the Commissioner or the Deputy Commissioners, who are impleaded as party defendants, since they are not sued in their individual capacity but are sued as authorities who exercised their statutory powers and adjudicated the dispute either as the original authority empowered to decide a dispute or as the appellate authority. 2. The court held that the Commissioner or the Deputy Commissioners, who are impleaded as party defendants in a suit under Section 70(1) of the Endowments Act, are not sued in their individual capacity but are sued as authorities who exercised their statutory powers and adjudicated the dispute either as the original authority empowered to decide a dispute or as the appellate authority.
Final Decision: The court allowed the appeal filed by the appellants and remitted the case to the appellate court for hearing and disposal in accordance with law. The court also dismissed the appeals filed by the respondents with the observation that, in the event of the appointment of a trustee, a committee or settlement of a scheme, for the management of the properties of the respective institutions/temples, the respondents shall consider the desirability of giving to the appellants the benefit of their past services and accept their de facto presence as trustees if they are not otherwise found disqualified.

Judgment :-

MISHRA, J.

1. These appeals have been heard together by us on a common question whether a suit under S. 70 (1) and (2) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 hereinafter referred to as “the Endowments Act”, is maintainable against an order of the Commissioner, who is made a party-defendant, without a notice under S. 80 of the Code of Civil Procedure, delivered to him or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims. We propose accordingly to deliver a common judgment on the question of notice and deal separately with other issues in the appeals.

2. The Endowments Act, amending and consolidating the laws relating to the administration and governance of Hindu Religious and Charitable Institutions and Endowments in the State of Tamil Nadu, provides under S. 9 thereof for the appointment of the Commissioner and such number of Deputy and Assistant Commissioners to carry out the purposes of the Act, and appointment to the post of Commissioner by the Government of the State by transfer from among the members of the Madras State Higher Judicial Service or of the Madras State Judicial Service or of any other service, or by promotion from Deputy Commissioners, or by direct recruitment and for appointment to the post of Deputy Commissioner, by transfer from among the members of the Madras State Judicial Service or of any other service, or by promotion from Assistant Commissioners, or by direct recruitment or by agreement or contract. S. 12(1) of the Endowments Act has declared that the Commissioner, Deputy Commissioners, Assistant Commissioners and other officers and servants including executive officers of religious institutions employed for the purposes of this Act shall be servants of the Government and their salaries, allowance, pension and other remuneration shall be paid in the First instance out of the Consolidated Fund of the State, and the Commissioner shall, out of the Tamil Nadu Hindu Religious and Charitable Endowments Administration Fund, repay to the Government sums paid by the Government to the Commissioner, Deputy Commissioners and others. Chapter V of the Endowments Act deals with inquiries. Matters which can be inquired into by the Deputy Commissioner are enumerated under S. 63 of the Endowments Act. The Deputy Commissioner is also empowered to settle schemes. The Commissioner however, has been given the controlling power and the power to settle schemes and the appellate power against any order passed by the Deputy Commissioner in exercise of any of the powers under Chapter V. His appellate and revisional powers are stated in S. 69 of the Endowments Act and it reads as follows:

“(1) Any person aggrieved by any order passed by the Deputy Commissioner under any of the foregoing Sections of this chapter may, within sixty days from the date of the publication of the order or of the receipt thereof by him, as the case may be, appeal to the Commissioner and the Commissioner may pass such order thereon as he thinks fit”.

“(2) Any order passed by the Deputy Commissioner in respect of which no appeal has been preferred within the period specified in sub-section (1) may be revised by the Commissioner suo-motu and the Commissioner may call for and examine the records of the proceedings to satisfy himself as to the regularity of such proceeding or the correctness, legality or propriety of any decision or order passed by the Deputy Commissioner. Any such order passed by the Commissioner in respect of an order passed by the Deputy Commissioner shall be deemed to have been passed by the Commissioner on an appeal preferred to him under sub-section (1)”.

“(3) Any order passed by the Commissioner on such appeal against which no suit lies to the Court under the next succeeding section, or in which no suit has been instituted in the Court within the time specified in sub-section (1) of S. 70 may be modifie

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