1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 11.08.2011 CORAM: THE HONOURABLE MR.JUSTICE R.SUDHAKAR W.P(MD)No.9001 of 2011 and M.P(MD)No.1 of 2011 M.Thiruppathi .. Petitioner Vs. 1.The Joint Commissioner, Hindu Religious and Charitable Endowments Department, Trivandram Road,Palayamkottai, Tirunelveli-2. 2.The Assistant Commissioner, Hindu Religious and Charitable Endowments Department, Palayamkottai, Tirunelveli-2. 3.The Executive Officer, Arulmigu Muppidathi Amman Temple, Kadyanallur & Post, Tenkasi Taluk, Tirunelveli District. .. Respondents PRAYER: Writ Petition is filed under Article 226 of the Constitution of India, to issue a Writ of Certiorari, calling for the records relating to the impugned order passed by the first respondent in his proceedings Say.Mu.Na.Ka.No.18887/2000-1/A2/dated 01.08.2011 and consequent impugned order passed by him in his proceedings Say.Mu.Na.Ka.No.18887/2000-2/A2/dated 01.08.2011 and quash the same. For Petitioner : Mr.J.John For Respondents : Mr.M.Govindan, Special Govt. Pleader O R D E R This Writ Petition has been filed to quash the impugned order passed by the first respondent in his proceedings Say.Mu.Na.Ka.No.18887/2000- 1/A2/dated 01.08.2011 and consequent impugned order passed by him in his proceedings Say.Mu.Na.Ka.No.18887/2000-2/A2/dated 01.08.2011. 2. Heard Mr.J.John, learned counsel argued for the petitioner and Mr.M.Govindan, learned Special Government Pleader, who appears for the respondents. 3. By consent, the Writ Petition itself is taken up for final hearing. 4. The petitioner challenges the two proceedings of the Joint Commissioner. The first proceedings is the charge memo and the second proceedings is the consequential order of suspension exercising his power under Section 53(1)(c) and 53(2) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959(for short 'the Act'). After issuing the order of suspension, the Joint Commissioner proceeded to issue another order in exercise of his power under Section 53(4) of the Act which has been wrongly stated as 54(3) of the Act, appointing a fit person to discharge the duties and perform the functions of the trustee. In view of the charges https://hcservices.ecourts.gov.in/hcservices/ 2 that are framed against the petitioner, he has been placed under suspension pending the charge memo. 5. The contentions of the Writ petitioner are as follows. (i) The Joint Commissioner who passed the impugned order has no jurisdiction to pass order. (ii) After framing the charges and suspending the petitioner temporarily, without awaiting for the petitioner to submit his reply on or before 16.08.2011 as stated in the charge memo, the authority has proceeded to appoint a fit person without taking into consideration the claim of the petitioner's wife who should have been appointed as hereditary trustee in the place of the petitioner since suspended. (iii) The authority has failed to consider the scope of Section 54(2) and 54(3) of the Act, which provides for appointment of a successor to the office of the hereditary trustee caused due to permanent and temporary vacancy. (iv) The period of suspension has not been specified. 6. The Special Government Pleader contended that Section 53(c) of the Act provides that in respect of any trustee of a religious institution included in the list under clause (i) of Section 46 of the Act and in respect of hereditary trustee of any religious institution not included in the list under Section 46 of the Act, the Joint Commissioner, Deputy Commissioner are empowered to exercise the power to suspend, remove or dismiss the hereditary trustee. Therefore, the first contention of the petitioner that the impugned order passed by the authority is without jurisdiction not tenable in law and misconceived. 7. As regards the plea of the petitioner that while suspending the petitioner, no time has been specified, hence the suspension is bad, does not stand to reason as in the present case, the petitioner has been temporarily suspended pending the charge memo proceedings Say.Mu.Na.Ka.No.18887/2000-2/A2/dated 01.08.2011. The petitioner has been called upon to give his explanation on or before 16.08.2011. Therefore, the suspension is made pending a final decision in the proceedings initiated by way of a charge memo. The question of specifying particular time will not arise as the Section does not require to be so specified. The petitioner can seek withdrawal of the suspension, if he succeeds in the charge memo proceedings. 8. Since Section 53(4) of the Act enables the authority to appoint a fit person, consequent to the suspension of the hereditary trustee to discharge the duties and perform the functions of the trustee pending the charge memo, the appointment of a fit person pending the charge memo cannot be assailed as bad. 9. Section 54 of the Act relates to filling up of a vacancy to the post of hereditary trustee. The question of considering the claim of the another trustee will arise on a claim by any other person who makes a claim The power of the authority under Section 54 of the Act is distinct and separate. As and when the person in the line of succession, makes an application for appointment in a permanent or temporary vacancy, the same https://hcservices.ecourts.gov.in/hcservices/ 3 will be considered by the authority under Section 54 of the Act. The said Section also provides for appeal remedy if any person is aggrieved by any order passed under Section 54 of the Act. This distinction clearly demarcates and amplifies the scope of the power exercised by the authority under Sections 53 and 54 of the Act, independently. 10. In order to appreciate the nature of power exercised by the authority, the relevant provisions are set out hereunder: (a) Section 53(1)(c) of the Act reads as follows: 53. Power to suspend, remove or dismiss trustees:(1) In this section, the expression,"appropriate authority" shall, unless the context otherwise requires, means- (c) In respect of any trustee of any religious institution included in the list published under clause(i) of Section 46 and in respect of any hereditary trustee of any religious institution not included in the list published under the said Section 46(the Joint/Deputy Commissioner). (b) Section 53(4) and (5) of the Act read as follows: (4) Pending the disposal of the charges framed against the trustee, the appropriate authority may place the trustee under suspension and appoint a fit person to discharge the duties and perform the functions of the trustee. (5) A trustee who is aggrieved by an order passed under Sub- Section (2), may within one month from the date of the receipt by him of the order of suspension, removal or dismissal, appeal against the order. (c) Section 54(1), 54(2) and 54(3) of the Act read as follows: 54.Filling up of Vacancies in the offices of hereditary trustee: (1) When a permanent vacancy occurs in the office of the hereditary trustee of a religious institution, the next in the line of succession shall be entitled to succeed to the office. (2) When a temporary vacancy occurs in such an office by reason of suspension of the hereditary trustee under sub-section (2) of Section 53, the next in the line of succession shall be entitled to succeed and perform the functions of the trustee until his disability ceases. (3) When a permanent or temporary vacancy occurs in such an office and there is a dispute respecting the right of succession to the office, or When such vacancy cannot be filled up immediately, or when a hereditary trustee is a minor and has no guardian fit and willing to act as such or there is a dispute respecting the person who is entitled to act as guardian; or when a hereditary trustee is by reason of unsoundness of mind or other mental or physical defect or infirmity unfit for performing the functions of the trustee, [The Joint Commissioner or the Deputy Commissioner, as the case may be,] may appoint a fit person to perform the functions of https://hcservices.ecourts.gov.in/hcservices/ 4 the trustee of the institution until the disability of the hereditary trustee ceases or another hereditary trustee succeeds to the office of for such shorter terms as [the Joint Commissioner or the Deputy Commissioner as the case may be], may direct. 11. While Section 53 of the Act deals with suspension, removal or dismissal of trustee, Section 54 of the Act deals with filling up of vacancy and therefore the two provisions operate independently. 12. On considering the petitioner's contentions, this Court is unable to accept the plea as above nor is it tenable, for the following among other reasons: (i) The impugned proceedings is only a charge memo and an order of suspension. The Joint Commissioner has the power to issue charge memo and an order of suspension in terms of Section 53(c) of the Act. Therefore, the plea of the petitioner that the order is passed without jurisdiction is without any legal basis. (ii) The authority is empowered to suspend, remove or dismiss the trustee on the basis of a charges framed against him and therefore, the Joint Commissioner is justified in placing the petitioner under suspension pending the charges framed. He is also empowered to appoint a fit person to discharge the duties and perform the functions of the hereditary trustee. The petitioner's plea that the authority should not have suspended the petitioner pending charge memo, cannot be countenanced as the authority has exercised his power in accordance with the provisions of the Act. The merits and factual aspect of the case cannot be considered at this stage. (iii) As regards the plea that the claim of hereditary trustee in the line of succession is concerned, should have been considered, as rightly pointed out by the learned Special Government Pleader, that right should be exercised by a person who is entitled to claim succession and the authority will consider the same independently. In this case, the person who is alleged to be the successor to the post of hereditary trustee has not come before the authority. It is also not the petitioner's case that the wife or any other person is a joint hereditary trustee. The person under suspension cannot plead for another person. (iv) Both Sections 53 and 54 of the Act, provide for different course of action by the authority in a given circumstances. The petitioner's plea is based on a misconception of the scope of power of the authority under Section 53 of the Act and the power under Section 54 of the Act. The two Sections act on different plane and the proceedings and orders passed therein are appealable independently thereby clarifying the above legal position. Section 53 of the Act is to initiate disciplinary proceedings and to take action thereon including the power to suspend and appoint a fit person. Whereas Section 54 of the Act is intended to fill up vacancy caused by considering claims of persons. That order can be separately appealed by the person aggrieved. The petitioner herein is a person aggrieved in terms of Section 53 of the Act. However, the person aggrieved in terms of Section 54 of the Act will be any other trustee, if there is one. (v) As regards the plea that no period has been mentioned in the suspension order is concerned, I am unable to countenance such argument as the order under challenge clearly states that pending the charge memo, https://hcservices.ecourts.gov.in/hcservices/ 5 petitioner is suspended. Time has been given to submit a reply to the charge memo on or before 16.08.2011. If the reply is filed and proceedings concluded, then the petitioner can seek revocation of suspension on succeeding in the issue. Without submitting his reply, the petitioner has filed this Writ Petition. In any event, Section 53(4) of the Act provides for suspension and no period of time has been specified therein and therefore the petitioner cannot plead that time has to be specified. The respondent has exercised his power in accordance with the Act and appointed the fit person and that cannot be said to be in excess of jurisdiction. 13. This Court is unable to find any reason to find fault the order under challenge. Further, this Court is not inclined to interfere with the impugned proceedings, as clause (5) of Section 53 of the Act provides for an appeal to the Commissioner as against the order passed by the Joint Commissioner and Deputy Commissioner. The petitioner has not pursued the appeal remedy. 14. The order of suspension, removal or dismissal can be appealed to the Commissioner and without exhausting the said remedy, the petitioner has rushed to this Court to invoke the remedy under Article 226 of the Constitution of India. For this reason also, the Writ Petition is liable to be dismissed. 15. For all the above said reasons finding no merits, the Writ Petition is dismissed. No Cost. Consequently, connected miscellaneous petition is closed. Sd/- Assistant Registrar (T & P) /True copy/ Sub Assistant Registrar(C.S) To 1.The Joint Commissioner, Hindu Religious and Charitable Endowments Department, Trivandram Road, Palayamkottai, Tirunelveli-2. 2.The Assistant Commissioner, Hindu Religious and Charitable Endowments Department, Palayamkottai, Tirunelveli-2. 3.The Executive Officer, Arulmigu Muppidathi Amman Temple, Kadyanallur & Post, Tenkasi Taluk, Tirunelveli District. pm W.P.(MD)No.9001 of 2011 and MP(MD)No.1 of 2011 11.08.2011 TR : 13.09.2011 : 5p/4c https://hcservices.ecourts.gov.in/hcservices/