IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:27-9-2010 CORAM THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN W.P.No.25622 of 2001 A.Raja Maheswaran ... Petitioner Versus 1.The State of Tamilnadu by its Secretary Commercial Taxes And Religious Endowments Dept., Fort St.George, Chennai-9. 2.The Commissioner, Hindu Religious and Charitable Endowments Dept., Nungambakkam High Road, Chennai-34. 3.The Joint Commissioner, HR & CE Department, Kumarasamypatti, Salem-9. 4.The Assistant Commissioner, HR & CE Department, Salem. ... Respondents Writ Petition filed under Article 226 of Constitution of India praying for the issuance of Writ of Mandamus directing the respondents herein to appoint non-hereditary trustees to Arulmigu Ekambareswara Kamakshi Amman Temple, Bazaar Street, Salem Town-636 001. For Petitioner :Mr.D.Rajagopal For Respondents :Mr.T.Chandrasekaran Spl.Government Pleader(HR & CE) for RR. 1 to 4 ORDER The petitioner has approached this court seeking mandamus directing the respondents to appoint non-heriditary trustee to Sri Arul Mighu Ekambareswara Kamakshi Amman Temple, Bazaar Street, Salem- https://hcservices.ecourts.gov.in/hcservices/ 636 001 only from among members of Viswakarma community residing in Salem in accordance with law as per Section 51 of the H.R. & C.E. Act,1959. 2. The case of the petitioner is that Sri Arul Mighu Ekambarswara Kamakshi Amman Temple, Bazaar Street, Salem-636 001 exclusively belongs to Viswakarma Community as it was founded, established and maintained by the members of the Viswakarma community, residing in Salem Town. By virtue of Board's order No.1465 dated 5.7.1935, the Board of Commissioner, HR & CE, Madras, declared the temple as an excepted temple as defined in Madras Act II of 1927. The further contention of the petitioner is that right from the establishment of the temple, the members of the Viswakarma Community are continuously appointed as non-hereditary trustees of the temple in question. The petitioner also referred to various orders passed by the competent authority appointing Viswakarma community members alone as non-hereditary trustees. The petitioner further contends that it is the exclusive rights of the members of the community to administer and maintain the said temple. 3. Learned counsel for the petitioner submits that the rights of the community to maintain and administer the temple is proved by documents and it is protected by Section 51 and proviso to Section 64 (2) (c) and Section 107 of the Act. He also relied upon a judgement of a Division Bench of this Court in S.P.Thiruvambalam and others vs. The Commissioner, HR & CE (Admn.) and others reported in 1971 ILR, Madras 861 and contended that the claim of a particular community was upheld in the said judgement and therefore the right of the petitioner's community to maintain and administer the temple by way of appointment of their members as non-hereditary trustee has to be allowed. 4. On the other hand Mr.T.Chandrasekaran, learned Special Government Pleader HR & CE submitted that there is no prerogative rights available to the members of Visvakarma community and preference is being given to them in the matter of non-hereditary trustees. He submitted that O.A.No.55 of 1975 filed under Section 64 (1) of the Act by Salem Viswakarma Samooga Maha Jana Sangam was dismissed by the Deputy Commissioner, Madras and the appeal filed in A.P.No.120 of 1978 was also dismissed by the Commissioner, Madras on 31.3.1980. The statutory suit in O.S.No.690 of 1980 filed under Section 70 of the said Act was also dismissed on 30.4.1985. The appeal suit filed in A.S.No.297 of 1988 was also dismissed on 19.2.2001 giving liberty to move before the Joint Commissioner by filing appropriate application by the eligible members of Viswakarma community, Salem. Therefore he seeks dismissal of the writ petition. 5. A perusal of the records would show that Sri Arul Mighu Ekambareswara Kamakshi Amman Temple, Bazaar Street, Salem-636 001 has been administered by the members of the Viswakarma community, Salem. https://hcservices.ecourts.gov.in/hcservices/ The order dated 5.7.1935 passed by the Board of Commissioner for Hindu Religious and Endowment, Madras in O.A.No.190 of 1935 would show that Sri Arul Mighu Ekambareswara Kamakshi Amman Temple, Bazaar Street, Salem-636 001 was declared to be excepted temple as defined in Madras Act Act II of 1927. By an order dated 13.9.1962, the Assistant Commissioner HR & CE, Salem appointed one Raju Asari as the Trustee and subsequently by order dated 23.3.1970, the Assistant Commissioner, the 4th respondent herein, appointed two trustees from Viswakarma community. By proceedings dated 20.10.1973 under Section 49(1) of the Tamil Nadu Hindu Religious and Charitable Endowment Act 1959, the 4th respondent appointed another person from the said Viswakarma community as a trustee and a similar order was passed on 16.10.1979 appointing three other persons from Viswakarma community as non-hereditary trustees. The notification issued by the 4th respondent dated 7.5.1990 would show that applications were called for only from the members of Viswakarma community, Salem for appointment of trustees of the said temple. Again on 17.3.1993 the 4th respondent appointed five trustees including the petitioner herein and they are all from the same Viswakarma community. The aforesaid proceedings would categorically prove the claim of the petitioner that they are alone to be appointed as non-hereditary trustees of Sri Arul Mighu Ekambaranathar Kamakshi Amman Temple, Bazaar Street, Salem-636 001. 6. In the judgement reported relied upon by the learned counsel for the petitioner S.P.Thiruvambalam and others vs. The Commissioner, HR & CE (Admn.) and others reported in 1971 ILR, Madras 861 decided whether suit temple was a private denominational temple or not and appointment of trustees was only from one particular community Vaniya Vysia Samugham by usage. The Division Bench of this Court held the temple was not a private temple and however recognised rights of Vaniya Vaisya Samugham to be appointed as trustees to that temple. In the case on hand abundant evidence available before this court by way of proceedings of HR & CE authority to show that only the members of the Viswakarma community alone are successively and continuously appointed and therefore they are alone entitled to be appointed as non-hereditary trustees by way of usual customs. The rights of the petitioner are also preserved by virtue of Section 51 (b) of the HR & CE Act, which is extracted as follows: "51(b) The Government, the Commissioner, the Joint Commissioner, the Deputy Commissioner or the Assistant Commissioner in marking appointments of trustees under Section 47 or Section 49 or Section 49-A, as the case may be shall have due regard to the claims of persons belonging to the religious denomination for whose benefit the institution concerned is chiefly intended or maintained." https://hcservices.ecourts.gov.in/hcservices/ 7. As per proviso Section 64(2)(c) due regard is required to be given to the persons belonging to religious denomination for whose benefits the institution is chiefly intended or maintained. Apart from that the respondents themselves admitted in their counter affidavit that the temple is a listed temple published under Section 46(ii) of the Act and the Viswakarma community people at Salem Town alone are appointed as non-hereditary trustee of the temple. It is also admitted in paragraph 9 of the counter affidavit. Para 9 of the counter affidavit reads as follows: " ....... This respondent also submits that notice inviting applications for appointment of non- hereditary trustees only from the members of Viswakarma Community of Salem to the suit temple has since been issued by the 3rd respondent in his Office Rc.No.15346/2001-6/B2 dated 18.12.2001. On receipt of applications, a panel of persons, who are qualified for appointment as trustees, shall be prepared by the District Committee which is yet to be constituted by the Government under Section 7-A of the said Act. Necessary action will be taken for appointment of non-hereditary trustees to the suit temple soon after the applications are received and it will be placed before the District Committee which is to be constituted. In this instant case, the scheme referred to by the writ petitioner is a scheme settled by this Department and therefore only District Committee to be constituted is competent to draw the panel of names of trustees. While notice has been issued calling for applications only from Viswakarma community, there is no grievance to be voiced by the writ petitioner. ..... " 7. In view of the admission made in the counter affidavit also, the writ petition has to succeed. Therefore, the respondents are directed to appoint the non-hereditary trustees only from and among the members of the Viswakarma Community of Salem to the Sri Arul Mighu Ekambaranathar Kamakshi Amman Temple, Bazaar Street, Salem-636 001 as per Section 51 of the Act. In view of that, the writ petition is allowed. No order as to costs. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar vk https://hcservices.ecourts.gov.in/hcservices/ To 1.The Secretary, State of Tamilnadu Commercial Taxes And Religious Endowments Dept., Fort St.George, Chennai-9. 2.The Commissioner, Hindu Religious and Charitable Endowments Dept., Nungambakkam High Road, Chennai-34. 3.The Joint Commissioner, HR & CE Department, Kumarasampatti, Salem-9. 4.The Assistant Commissioner, HR & CE Department, Salem. 1 cc to Mr.D.Rajagopal, Advocate, Sr.No.71139 1 cc to Government Pleader, Sr.No.71438 W.P.No.25622 of 2001 SJ {CO} TP/19.10.2010. https://hcservices.ecourts.gov.in/hcservices/