NAGARAJAN AND ORS. Vs. THE COMMISSIONER, HINDU RELIGIOUS AND CHARITABLE ENDOWMENTS (ADMINISTRATION) DEPARTMENT AND ORS.

JUDGEMENT

(1.) Petitioner herein was appointee as fit person of Arulmigu Poomayee Amman Temple by Deputy Commissioner, Hindu Religious and Charitable Endowments Board, Madurai after removal of the hereditary trustee by order, dated 19th March 1977. Aggrieved against the said order, Karuppih Bhattar, the hereditary trustee filed an appeal to the first Respondent on 21st December, 1977 and after his death, his sons, Respondents 2 to 5 have represented him. At the time when the appeal was presented, there was enormous delay of 7 months, but still first Respondent excused the delay, though there was no sufficient cause and he has now directed the appeal to be posted for hearing on 7th April, 1979 by the impugned order in Appeal Petition No. 10 of 1979 dated 19th January 1979. Though Petitioner had been appointed as fit person of the temple, he was not communicated with the order and since be is interested in the welfare of the institution, he has come forward to file this writ petition.

(2.) According to the Petitioner, Commissioner, H.R. and C.E. Board, is a persona designate, and hence he has no jurisdiction to invoke the powers under Sec. 5 of the Limitation Act. It is only the Courts which can exercise the powers under Sec. 5 of the Limitation Act, and in the instant case, to ground at all stated for excusing the in ordinary delay. As per Sec. 53(5) of Tamil Nadu Hindu Religious and Charitable Endowments Act (XXII of 1959), (hereinafter referred to as T.N.) Act within one month from the date of receipt of the order, an appeal should have been preferred, and therefore, apart from Sec. 5 of the Limitation Act, Commissioner has no discretionary power to condone the delay. The petition having been ordered without notice to Petitioner, it has affected not only his interests but also the interests of the temple because the hereditary trustee was removed on the ground of maladministration.

(3.) In a common counter -affidavit filed, it is stated by Commissioner that it is unnecessary to controvert the factual allegations made in the affidavit, since the question to be determined is whether in functioning as an appellate authority or revisional authority he has power to condone the delay and whether Sec. 5 read with Sec. 29(2) of the Limitation Act of 1963 (hereinafter referred to as 63 Act) would be applicable to such proceedings or not, As the correct position had not been hitherto under stood, be was condoning the delay, but however, realising the correct legal position, he has declined to condone the delay Accordingly, in the present case, he had declined to entertain the appeals preferred by the Petitioner herein under Sec. 69(1) of the Act, as they were out of time.