IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated:- 14.10.2011 Coram:- The Hon'ble Mr. Justice T.RAJA Writ Petition Nos.14032/08, 17160/08, 23762/08 & 10031 of 2010 and M.P. Nos.1, 1, 2 & 7/08, 1 to 3/10 and 1 of 2011 W.P. No.14032, 17160 & 23762 of 2008:- Ayira Vysya Jagadguru Sri Sankarasubbramania Dharma Siva Acharya Swamigal - Madathipathy Thirualangadu Immudi Agora Dharma Sivachariyar Ayira Vysya Mutt, Nerinjipettai – 638 326, Erode District. ... Petitioner vs. The Special Commissioner/Commissioner, The Hindu Religious and Charitable Endowment (Administration) Department, Chennai – 600 034. ... R1 in the above three W.Ps. The Assistant Commissioner, The Hindu Religious and Charitable Endowments (Administration) Department, Erode. ... R2 in the above three W.Ps. Thiru.Alangadu Immudi Aghora Dharmasivachariya Ayira Vysia Mutt, rep. By the Chairman of the Board of Trustees R.Muthukumarasamy, https://hcservices.ecourts.gov.in/hcservices/ Nerinjipettai-638 311, Bhavani Taluk, Erode District. ... R3 in WPs.14032 & 23762/08 & R5 in WP.17160 of 2008. Dr.M.Jayaraman ... R3 in WP.17160 of 2008 & R4 in WP No.14032 of 2008 D.Sachidhanandhan ... R5 in WP.14032 of 2008 & R4 in WP No.17160 of 2008. W.P. No.10031 of 2010:- Thiru Alangadu Immudi, Aghora Dharmasivachariya Ayira Vysia Mutt, rep. by its Chairman of the Board of Trustees D.S.Muthusamy Chettiar, Nerinjipettai – 638 311, Bhavani Taluk, Erode District. ... Petitioner vs. 1. The Commissioner, Hindu Religious and Charitable Endowment (Administration) Department, Uthamar Gandhi Salai, Nungambakkam, Chennai – 600 034. 2. The Joint Commissioner, The Hindu Religious and Charitable Endowments (Administration) Department, Coimbatore. 3. The Assistant Commissioner, Hindu Religious and Charitable Endowment Department, Erode. ... Respondents Petitions under Article 226 of the Constitution of India for the relief as stated therein. https://hcservices.ecourts.gov.in/hcservices/ W.P.No.14032 of 2008:- calling for the records of the 2nd respondent relating to the notification dated 21.04.2008 published in Tamil Daily Thina Thanthi dated 26.04.2008 and subsequently modified by his notification dated 29.04.2008 published in Tamil daily Thina Thanthi dated 01.05.2008 to conduct the election to the Board of Trustees to the Thirualangadu Immudi Agora Dharma Sivachariyar Ayira Vysya Mutt Nerinjipettai to be held on 22.06.2008 and to quash the same. W.P.23762 of 2008:-calling for the records pursuant to the order in the proceedings of the 1st respondent bearing Na.Ka.No. 86545/04/S.2/1 dated 20.06.2007 appointing the second respondent as election Officer to conduct the election to the office of Trustees to the Thiru Alangadi Immudi Agora Dharma Sivachariyar Ayira Vysya Mutt Nerinjipettai Bhavani Taluk Erode District and to quash the same. W.P.No.17160 of 2008 directing the first respondent to handover the entire administration of Thiru Alangadu Immudi Agora Dharma Sivacharya Ayira vysya Mutt Nerinjipettai Bhavani Tk Erode Dt to the petititoner in the capacity as the Madathipathy and trustee of the aforesaid mutt forthwith. W.P.No.10031 of 2010:- Calling for the records of the 1st respondent culminating in and by his Proceeding in Se.Mu.Na.Ka.No.8834/2010/S.2-1 dt.29.4.2010 and quash the same and consequently direct the respondents to permit the petitioner committee of Trustees to manage the day-to-day affairs of the petitioner mutt. For petr. in Writ Petn. No.10031/10 – Mr.V.Bharathidasan For petitioner in the other three Writ Petitions - Mr.T.V.Ramanujun, Senior Counsel for Mr.C.Uma Shankar. For R1 to R3 in WP No.10031/10 & R1 & R2 in the other writ Petitions - Mr.S.Kandasamy, Spl. Govt. Pleader (HR & CE Dept.) For R5 in WP. No.17160/08 and R3 in WPs.14032 & 23762/08 - Mr.V.Subramanian For R3 & R4 in WP.17160/08 and R4 & R5 in W.P. No.14032 of 2008 - Mr.V.Shanmugham https://hcservices.ecourts.gov.in/hcservices/ For petitioner in MP No.7/08 in WP 14032/2008 - No Appearance COMMON JUDGMENT A clamorous unrest erupted as a result of an awesome rift between a Madathipathi and a group of Disciples/Trustees of a Mutt called Thiru Alangadu Immudi Aghora Dharmasivachariya Ayira Vysya Mutt (in the course of this Judgment shortly referred to as “Vysya Mutt”) over the administration of the Mutt and its properties, with the respective individuals emulously vituperating each other of certain mean-spirited misdoings, ultimately has led to filing of the present writ petitions, of which, three petitions viz., W.P. Nos.14032, 17160 and 23762 have been respectively filed by the Madithipathi, (a) for the issuance of a writ of certiorari to call for the records from the office of the 2nd respondent, the Assistant Commissioner, The Hindu Religious and Charitable Endowments (HR &CE) Department (Administration), Erode, relating to the Notification, dated 21.04.2008, published in Tamil Daily 'Thina Thanthi”, dated 26.04.2008, and subsequently modified by his Notification dated 29.04.2008, published in the same Newspaper on 01.05.2008, to conduct the election to the Board of Trustees of the Vysya Mutt, to be held on 22.06.2008, and to quash the same; (b) for the issuance of a writ of mandamus to direct the first respondent, the Special Commissioner / Commissioner, HR & CE Admn. Department, Chennai-34, to hand over the entire administration of the Vysya Mutt, to the petitioner in the capacity as the Madathipathi and Trustee of the Mutt, forthwith; and (c) for the issuance of a writ of certiorari to call for the records pursuant to the order in the proceedings of the first respondent, the Special Commissioner / Commissioner, HR & CE Admn. Department, bearing Na. Ka. No.86545/04/S.2/1, dated 20.06.2007, appointing the 2nd respondent-the Assistant Commissioner, HR & CE Admn. Dept., Erode, as Election Officer to conduct the election to the office of Trustees in the Vysya Mutt, and to quash the same;, while the other writ petition in W.P. No.10031 of 2010 has been filed by one D.S.Muthusamy Chettiyar, claiming to be the Chairman of https://hcservices.ecourts.gov.in/hcservices/ the Board of Trustees of the Vysya Mutt, “ for the issuance a writ of certiorarified mandamus to call for the records of the first respondent/Commissioner of the HR & CE Board in regard to proceedings in Se.Mu.Na.Ka.No.8834/2010/S.2-1, dated 29.04.2010, quash the same and consequently, direct the respondents to permit the petitioner's Committee of Trustees to manage the day-to-day affairs of the Mutt”. 2. Since the core issue regarding correctness or otherwise of the impugned proceedings of the HR & CE Board to conduct election to the Board of Trustees of the Mutt by the Board itself and to retain with it the management of the Mutt till devolving the administration to the de jure authority, and the allied issue relating to the rival claims of the Madathipathi and the Board of Trustees seeking to hand over the administration of the Mutt, require common consideration, all the writ petitions are heard together and given joint disposal by this Common Judgment. 3. While recording the submissions of the respective learned counsels, for the purpose of brevity in a matter which involves a complex factual backdrop, at the first instance, it is profitable to outline the relevant facts as projected by Mr.T.V.Ramanujun, learned Senior Counsel appearing for the petitioner/Madathipathi. The Vysya Mutt was founded by its first Madathipathi called Valkala Mounchikeswara Maharishi – a Brahmin by birth, also known as Thiru Alangadu Immudi Agora Dharma Sivachariar, at Thiru Alangadu situated in the present Thiruvelore District, about 30 miles away from Chennai about one thousand years ago. The successors of the founder-Madathipathi were Brahmins with disciples from Aiyra Vysya Community. It was the founder's dictate in terms of the religious custom of the cult that a Minor South Indian Naishtiga Brammacharya boy only was to be selected and installed as Madathipathi for the Mutt whenever vacancy arises in the Peeth. All the Ayira Vysia are disciples of one and the same spiritual head viz., Sri Dharma Sivacharya, who settled down at Thirualangadu in Chittur District, and some centuries ago, on account of a sense of insecurity arose due to rivalry between two ideological Groups, he migrated and settled down at Palamalai Hills near Nerinjipet. The Mutt at Nerinjipettai was established as an off-shoot of the aforesaid Thiru Alangadu Mutt in 1815 A.D. While so, on 03.05.1951, the then Madathipathi-Saptha Rishi Dharma Sivacharya Swamigal attained Siddhi, whereupon, the successor-Madathipathi could not be selected for installation and, in order to overcome the situation of keeping the seat of Madathipathi vacant, some of the disciples of the Mutt filed a https://hcservices.ecourts.gov.in/hcservices/ petition before the Deputy Commissioner (Admn.) of the HR & CE Board for settlement of a Scheme for the Mutt. By Order dated, 30.09.1954, passed in O.A. No.3514 of 1951, the authority settled a Scheme for the Mutt and such Scheme underwent a modification by the Commissioner of the HR & CE Appeal when the Appeal preferred before him in Appeal No.3 of 1955 was decided on 31.08.1955. The said modified Scheme was challenged before the Subordinate Court at Erode in O.S. No.155 of 1996 and, by its Judgment dated 24.12.1958, the Sub Court settled a New Scheme to be effective from 01.01.1959 and the same has been in force from the said date. In terms of clause-28 of the Scheme, which provided that the Madathipathi shall be selected by the Committee of Trustees elected by the disciples of the Mutt within six months from their assuming office, the petitioner in the above three writ petitions, being a south Indian Brahman and a Naishtiga Brammchari aged about 12 years at that time, was selected as Madathipathi/Head of the religious, secular and administrative units of the Mutt by the third Committee of Trustees elected subsequent to the Scheme concluded by the Sub Court. The Adoption Deed, dated 05.02.1977, executed by the parents of the boy/petitioner was accepted by the then Chairman of the Committee of Trustees by name A.Veerappan Chettiar. 3-B. So briefing the background in which the Scheme, dated 01.01.1959, came to be settled and the manner in which the petitioner came to be selected as Madathipathi, learned Senior Counsel highlighted the events that caused rift and bitter feelings between the Head of the Mutt and the Trustees by stating that the very same Committee of Trustees, which selected the petitioner as Madathipathi, by exerting threat and force and by making untenable allegations, drove away the petitioner in the year 1978 when he was just 13 years old. Also, they filed a suit in O.S. No.696 of 1980 before the Sub court, Gobichettipalayam, slanderously alleging misconduct against the Madathipathi and seeking to remove him from the office of Madathipathi. Though the said suit was ordered in their favour by order, dated 16.12.1995 with a finding that though the appointment of the petitioner was valid, he should be removed from the office for misconduct, on appeal before the Principal District Judge, Periyar District at Erode, the petitioner succeeded and by judgment, dated 25.04.1988, the decree of the lower court came to be set aside holding that the appointment of the petitioner was valid in law and such verdict of the lower appellate court was also upheld by the High Court vide Judgment, dated 23.06.1989, passed in Second Appeal No.1054 of 1988. Learned Senior Counsel emphasised that the High Court, in its findings in the above Second Appeal, categorically held that ‘it is manifest that the madathipathi is the superior head of the Mutt both spiritually and administratively’. Though the petitioner returned back to the Mutt after the judgment in his favour, he was never given a free hand to https://hcservices.ecourts.gov.in/hcservices/ do the obligations connected to the affairs of the mutt since the rivals, under one pretext or other, by setting up persons as disciples, incessantly filed litigations before various courts and successfully prevented him from acting as Madathipathi. That is why, the petitioner had to approach the HR & CE Board for annulment of the Scheme itself or proper modification of the Scheme so as to confirm that the madathapathi is given his due right and privilege to act in that capacity. 3-C. In the above back-ground, it is submitted that, as on the date of initiating the impugned proceedings, the petitioner being the Madathipathi-cum-Trustee in terms of the confirmed position declared by this Court in the above referred second Appeal, at least, he should have been consulted about the election process, but, that was never done. Therefore, the self-initiated action running contrary to the scheme reflects the utter mala fides on the part of the authority; therefore, the entire election process is liable to be subverted. In other words, if the impugned Notification of the first respondent in appointing the 2nd respondent as the Election Officer to conduct election for the Board of Trustees is allowed, the petitioner would be put to irreparable loss and hardship for the simple reason that neither the 2nd respondent nor the Board of Trustees have any power, sanction or authority to conduct the elections except with the nod of the petitioner, who alone is the ultimate authority in the matters of identifying the disciples, eligibility of the members to participate in the process, etc. 3-D. As regards the impugned election notification, dated 20.06.2007, ie., the subject matter of W.P. No.23762 of 2008, again, it is reiterated that the Board overstepped and exceeded its authority with reference to the affairs of the Mutt by issuing applications for enrolling new members. According to the learned Senior Counsel, even as per the Notification, the authority was authorised only to deal with certain basic aspects viz., filing of nomination, scrutiny and return of nomination and publication of final list of candidates and never, there was any power conferred upon the authority to take on record new members/disciples on the roll. Therefore, the high-handed action on the part of the Board would suggest otherwise and further, it also leads to an inference of collision of the Board with the favourites; therefore, it is absolutely necessary that this Court quashes the entire election proceedings in terms of the settled position as concluded in the Second Appeal regarding the supreme authority of the Madathipathi over religious, secular and administrative spheres. 3-E. As regards the prayer in Writ Petition No.17160 of 2008 https://hcservices.ecourts.gov.in/hcservices/ for handing over the administration of the Mutt to the petitioner/Madathipathi, learned Senior Counsel, by much reiterating the proposition that a Madathipathi presiding over the affairs of a Mutt/Institutional Sanctum and holding the dual office of religious and secular head of the particular cult or religious folk, is the absolute manager of the secular properties of the Institution of the Mutt and therefore, such Madithapathi is also a Trustee within the definition under Clause 22 of Section 6 of the Act, would argue that, as on to-day, after the term of earlier elected trustees having come to an end on 13.06.2005, the petitioner/Madathipathi alone is the Head, Administrator and Manager of the Mutt and its properties; hence, be allowing the said petition, the authorities may be directed to hand over the entire administration of the Vysya Mutt to the petitioner. Consequently, he prayed to straight away dismiss the claim of the rival petitioner in W.P. No.10031 of 2010 for permitting the petitioner therein/D.S.Muthusamy Chettiar and the Committee headed by him to manage the day-to-day affairs of the Mutt. 4. Per contra, Mr.S.Kandaswamy, learned counsel appearing for the HR & CE Board in the petitions, states that the endeavour of the petitioner/Madathipathi in filing O.A. No.1 of 1999 before the Commissioner of HR & CE Board for cancellation of the scheme (framed by the Sub Court, Erode, in O.S. No.155 of 1956) by which only he came to be selected as Madathipathi to be the religious and spiritual head of the disciples and of the endowments and head of the secular affairs of the Mutt, would only reflect his indifferent approach, and comments that such preposterous attempt is nothing but harnessing the horse after the wagon. Likewise, criticising much about the conduct of the petitioner/Madathipathi in bartering cash for crown ie., striking a deal with the Committee of Trustees to settle him the amount of Rs.11,57,000/- in four Instalments for relinquishing the Office of Madathipathi, he would say that, in pursuance of such deal between the Head of the Mutt and the Committee, a Resolution dated 14.03.1999 came to be passed and followed by the same, a Joint Memo, dated 26.04.1999, in O.A. No.1 of 1999 was also moved before the HR & CE Department, however, the Commissioner, in the overall interest of the Mutt, ultimately dismissed such Joint Memo by his order dated 05.05.1999. Had this phenomenon occurred and surfaced while the Second Appeal was given disposal, definitely, the Madathipathi would have been ousted even at the hands of this Court itself. By referring to the Scheme, it is further stated that the Madathipathi cannot individually operate the Bank Accounts nor shall represent the Mutt in Civil, Criminal and revenue matters concerning the Mutt before any court or forum. As in the case of the Madathipathi, equally, there lies an allegation against the rivals in striking at a deal with the Madathipathi for relinquishment of the seat and further, they are https://hcservices.ecourts.gov.in/hcservices/ also not free from the accusation of self-interested activities. Therefore, in terms of what is provided under Section 118 (2) (b) of the Act, by virtue of which the provisions of the Act would prevail over the Scheme when it runs inconsistent with the provisions as in the given situation, the Board took the decision to conduct the election in a fair manner so that the disputes and affairs are settled in the right manner. Thus, there is no scope for interference with the impugned proceedings unjustly challenged before this Court with mala fide intention by persons driven by self-motivation. 5. M/s.V.Shanmugam and V.Subramanian, learned counsels appearing for the respondents/committee members and Mr.V.Bharathidasan, learned counsel appearing for the Chairman of the Mutt/petitioner in W.P. No.10031 of 2010 would, in their fierce criticism on the conduct of the petitioner-Madathiapthi, submit that the entire community and the well-wishers of the Mutt have lost their faith in the Head of the Mutt as he never interested in the welfare and development of the Mutt but concentrated only on the worldly gains. According to them, from the series of litigations launched at his hands against the committee of the Mutt, it could be seen that he would always concentrate on temporal affairs and usually seek for repayment of the money alleged to have been spent by him and complain non-payment. In that background, one can easily study his intention in seeking modification or annulment of scheme itself, by virtue of which alone he came to be selected as Madathipathi, as the scheme, while dealing with the income of the mutt and disbursal, in vivid and unambiguous terms, provides in clause 13 that no person other than the Executive Officer or the Chairman as the case may be shall be entitled to receive the income of the Mutt or make any disbursement thereof. Looking at any perspective, no justification whatsoever can be found in the claim of the petitioner/Madathipathi for stalling the election process and seeking instant handing over of the administration of the Mutt, therefore, it is prayed that the writ petitions filed by the Madathipathi may be dismissed with costs. Consequently, Mr.Bharathidasan, learned counsel appearing for the Chairman of the Committee/petitioner in W.P. No.10031 of 2010, pleaded to allow the committee to manage the affairs of the mutt even as a care-taking unit until the issue is settled through the outcome of the election process. 6. I have given my thoughtful consideration to the rival arguments advanced on either side in regard to the complex factual scenario and vying claims for management and administration of the Mutt by the respective individuals. The main and core issues based on which, this court has to deliberate upon for arriving at a conclusion are, https://hcservices.ecourts.gov.in/hcservices/ (a) Whether, in the given facts and circumstances peculiar to this case, the HR & CE Board is right in initiating the election process through the impugned proceedings to elect the Board of Trustees to the Mutt without even consulting the supreme Head of the Mutt, the Madathipathi, regarding the disciples eligible to participate in the election and further, in retaining the management of the Mutt?, (b) Whether the Madathipathi is right in assuming that he is simultaneously Madathiapthi as well as Trustee in terms of Section 6 (22) of the Act when the Scheme provides otherwise, and justified in stating that the trustees cannot be elected and no election can be conducted on the ground that after his appointment, no trustees can hold the office?; (c) Whether the Madathipathi is correct in emphasising his rights and claim in the light of the Scheme when he himself, admittedly, by moving an Application sought for modification/cancellation of the Scheme based on which he came into existence as Madathipathi and such application is pending disposal at the hands of the HR & CE Board? And (d) whether it would be just and proper at this point of time to entrust or hand over the management of the Mutt either to the Madathipathi or the committee of Trustees headed by the Chairman? 7. At the first instance, the scope and objectives behind the Scheme Settled should be graphically presented to rightly understand and appreciate the rival claims. After the demise of Dharma Sivacharya Swami on 03.05.1951, an exigency had arisen as none was selected and installed as the successor Madathipathi. Therefore, some of the disciples of the Vysya Mutt approached the HR & CE Admn. Department for settlement of a scheme, whereupon, the Scheme, dated 30.05.1954, came to be evolved by the Deputy Commissioner of the Department in O.A. No.3514 of 1951. However, such scheme was sought to be modified by way of Appeal No.3 of 1955 and, after conducting enquiry thereon, the appellate authority viz., the Commissioner, settled a modified scheme, dated 31.08.1955. Again, the said Scheme came to be challenged before the Sub Court, Erode, in O.S. No.155 of 1956. At this juncture, it must be carefully taken note of that, amongst the various reason cited for modification, few of them was that the Scheme settled by the https://hcservices.ecourts.gov.in/hcservices/ appellate authority/Commissioner did not provide for the selection of a Madathipathi and that unfettered powers were conferred upon the Executive Officer and thereby the activities of the Madathipathi were to be controlled by the authority. The learned Subordinate Judge, while identifying the characteristic of the Mutt for which the Scheme is sought to be finalised, adeptly delved into the origin of the Mutts and concluded that the mutt in question is neither of the kind of Sankara nor it had the semblance to Sudra with the following specific findings on the peculiarity of the Mutt and the position of Madithapathi compared to other Mutts:- “The custom and usage of the suit Mutt and its origin are peculiar, so that the rules of the constitution or the usage and customs of those institutions and the rights and duties pertaining to the Mohunts or the Pandara Sannadhis of those institution are not obtainable in the suit Mutt”. “ That the Madathipathi, who is selected by the general body of the disciples, is not empowered to nominate his own successor. Thus, the Dharmasivachariar Mutt at Nerinjipet follows a peculiar custom and usage unlike the other Brahmin Mutts or the Sudras' Mutts functioning in the different parts of the madras state. ...” Thus, the Sub Court which framed the Scheme for the Vysya Mutt had categorically found its peculiar nature and characteristic and only, in that context, settled the Scheme which, admittedly, was never questioned by any of the members of the community concerned save the petitioner/Madathipathi in the year 1999 by way of moving an application in O.A. No.1 of 1999 before the HR & CE Board. From the above aspect dealt with by the Sub Court, it must be borne in mind that, while dealing with this case, a generalised concept with reference to various spectrum of mutts and the concepts of Madathipathi prevalent there-at cannot be applied to the Mutt in the instant case as it stands distinctly from others. 7-A. Proceeding one step further, the Scheme Court also ventured into the question of ordinary rights and duties of the Madathipathi with reference to the conflicting view arose even at that point of time - as to whether the head of a Mutt is a trustee