IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 22.12.2011 CORAM THE HONOURABLE MR.JUSTICE M.M. SUNDRESH Writ Petition No.6295 of 2011 K.B. Punniyakotti .. Petitioner Versus 1. The Secretary, Hindu Religious & Charitable Endowments Department, Secretariat, Chennai-9 2. The Commissioner, Hindu Religious & Charitable Endowments Board, Nungambakkam, Chennai-34 3. K.M. Murthy 4. S. Neelakandan 5. P.R. Sivaramakrishnan 6. T.N. Thanikachalam 7. P.S. Shankaran 8. Arulthiru Sivasubramaniyasamy Thirukoil rep. by Fit Person .. Respondents Prayer: Petition has been filed under Article 226 of the Constitution of India to issue a writ of certiorarified mandamus calling for the records on the file of the respondents 1 and 2 in respect of the impugned orders G.O. (Pa) bearing No.92 dated 24.02.2011 passed by the first respondent and the subsequent order dated 25.02.2011 bearing Na.Ka.No.78225/2010/A-2 passed by the second respondent and to quash the same and to direct the respondents 1 and 2 to appoint the trustees to the temple namely Arulthiru Sivasubramaniya Swamy Temple, Saidapet, Chennai-15 as per the terms of the scheme passed by Deputy Commissioner, Hindu Religious & Charitable Endowments, Chennai-34 in O.A. No.76/75 formulated for the temple within the time stipulated by this Court. For Petitioner : Mr. S.M. Loganathan for Mr.V.B.Thirupathikumar For Respondents : Mr. R. Kannan, G.A. for R1 & 2 Mr. J.R.K. Bharanantham for R3 to 8 https://hcservices.ecourts.gov.in/hcservices/ O R D E R By consent, this writ petition itself is taken up for hearing. 2. This writ petition has been filed by the petitioner herein who has been appointed as a fit person. Challenging the orders impugned in G.O. (Pa) No.92 dated 24.02.2011 and the subsequent order dated 25.02.2011 passed by respondents 1 and 2 by which five trustees have been appointed as per the scheme, the petitioner has been appointed as a fit person. 3. It is not in dispute that the appointment of the petitioner is temporary, subject to the appointment of the trustees of the temple under Section 47 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959. By the orders impugned, the second respondent has appointed three persons as non hereditary trustees. Similarly by the order dated 24.02.2011, the first respondent has nominated two persons as non hereditary trustees. The said orders are put in challenge by the petitioner being the fit person. 4. Mr. S.M. Loganathan, learned counsel appearing for the petitioner submitted that the appointments made in pursuance of the impugned orders are contrary to the provisions contained under Section 47 of the Act. Learned counsel further submitted that Section 47(1)(a) mandates that the second respondent while appointing non hereditary trustees is duty bound to appoint a member of the Scheduled Castes or Scheduled Tribes community as one among the three trustees. Section 47(1)(C) further mandates that out of the five non hereditary trustees one has to be a woman candidate apart from a member of the Scheduled Castes or Scheduled Tribes. In other words, the learned counsel submitted that out of five non hereditary trustees one of them will have to be from the Scheduled Castes or Scheduled Tribes community and another should be a woman. Learned counsel further submitted that admittedly in the present case on hand, the respondents 1 and 2 have appointed non hereditary trustees without providing the appointment of a woman and one from the Schedule Castes or Scheduled Tribes community. In as much as the appointments are contrary to the provision contained under Section 47, the order impugned will have to be set aside. 5. Per contra, the learned counsel appearing for the respondents submitted that the petitioner does not have a locus standi to challenge the appointments. Admittedly the appointment of the petitioner is temporary in nature as the private respondents having been appointed as non hereditary trustees by the first respondent and that the petitioner is duty bound to hand over the charges. It is further submitted that as per the scheme governing the temple, it is not necessary that two of the members should be from the Scheduled Castes or Scheduled Tribes community and a woman candidate. Section 50 of the Act provides special power for the purpose of exercising https://hcservices.ecourts.gov.in/hcservices/ the power under Section 47 of the Act and hence the orders impugned will have to be sustained. 6. Section 47 of the Act has got a statutory prescription. In other words, Section 47 is mandatory in nature and under the said section, respondents 1 and 2 will have to exercise the power. When the respondents 1 and 2 exercised the power under Section 47, it is not open to them to contend that the appointment will have to be made as per the scheme. As submitted by the learned counsel appearing for the petitioner, when the scheme is repugnant to the provision of the Act, the same will have to give way to the said provisions as contemplated under Section 118. It is no doubt true that Section 50 of the Act provides power of the respondents 1 and 2 to implement the provisions of the Act. Now question for consideration is as to whether the respondents 1 and 2 have exercised the provision of the Act, particularly with reference to Section 47. This Court is of the view that the said exercise has not been done in a proper manner. As held by the Hon'ble Division Bench of this Court in Meyappa Velar vs Tamil Nadu Temple Administration Board reported in (1995) 1 CTC 221, there is an object behind the introduction of Section 47, particularly with reference to the condition which stipulates that while appointing non hereditary trustees, one shall be a member of Schedule Castes or Schedule Tribes and another should be from the woman folk. The object behind Section 47 cannot be allowed to be belittled by a mere reliance upon the provisions under the said scheme. A perusal of Section 47 would show that the prescription contained in Sub clause (a) is mandatory in nature. In other words, there is no option left with the second respondent except to appoint a member of the Schedule Castes or Schedule Tribes community, while constituting the board of trustees consists of three persons. It is no doubt true that the proviso further states that in addition to the persons appointed by the Commissioner under Section 47(1)(a) & (2) the Government can nominate two more members. But the legislature in his wisdom has made it clear that while nominating such persons, the same need not cover a member of the Scheduled Castes or Schedule Tribes community. While the proviso is silent about the appointment of a member belonging to the Scheduled Castes or Scheduled Tribes community while exercising the power of nomination, it clearly stipulates the appointment of such a member, while exercising the power by the Commissioner under the first proviso. 7. Therefore a conjoint reading of the two proviso contained in Section 47(1)(a) would leave no doubt in the mind of this Court that it is the bounden duty of the Commissioner, while exercising the power under Section 47(1)(a) to appoint a member of Scheduled Castes or Scheduled Tribes community as a non hereditary trustee out of three. The next question for consideration is the inclusion of a woman member. Section 47(1)(a) does not specifically stipulates that a woman member will have to be appointed only by a Commissioner or by the Government concerned. Therefore, such a power can either be https://hcservices.ecourts.gov.in/hcservices/ exercised by the Commissioner or by the Government. In other words, the said power can be exercised at the time of appointment or at the time of nomination. That is a reason why it has not been specifically fixed either on the Joint Commissioner or Deputy Commissioner or Commissioner concerned on the one hand and the Government on the other hand. However Section 47(1)(c) makes it clear that one member shall be a woman. When such positive mandate is stipulated, the respondents 1 and 2 while implementing the same under Section 50 will have to give a full meaning to it. In other words, a proper construction of Section 50 would mean that the provision contained under Section 47 will have to be given effect to by respondents 1 and 2 by fully implementing it. 8. In the light of the discussion above, this Court is of the view that the orders impugned will have to be set aside. Accordingly, they are set aside and consequently the second respondent is directed to appoint one among the three members of non hereditary trustees of the board of directors from the community of Scheduled Castes or Scheduled Tribes. 9. This Court also direct either the second respondent or first respondent to appoint a woman candidate. The said exercise will have to be done by the second respondent within a period of eight weeks from the date of receipt of a copy of this order. 10. It is made clear that as and when the respondents 1 and 2 have complied with the directions of this Court, by appointing and nominating the non hereditary trustees, the petitioner will have no right to continue as a fit person. The writ petition is ordered accordingly. No costs. Consequently, connected M.Ps. are closed. Sd/- Asst. Registrar /true copy/ Sub Asst. Registrar. vga https://hcservices.ecourts.gov.in/hcservices/ To 1. The Secretary, Hindu Religious & Charitable Endowments Department, Secretariat, Chennai-9 2. The Commissioner, Hindu Religious & Charitable Endowments Board, Nungambakkam, Chennai-34 1 cc to The Govt. Pleader, SR 78499 1 cc To Mr.V.B.Thirupathikumar, Advocate Sr 78269 1 cc To Mr.P.B.Ramanujam, Advocate Sr 78265 Writ Petition No.6295 of 2011 mrd[co] gp/9.1 https://hcservices.ecourts.gov.in/hcservices/