A SHANMUGHA MUDALIAR Vs. P V RAJAGOPAL DIED

JUDGEMENT

(1.) DEFENDANTS 3 to 5 are the appellants in this appeal against the judgment and decree dated 24. 4. 1981 in O. S. No. 122 of 1977 on the file of Sub Court, Kancheepuram , decreeing the suit as prayed for by the plaintiff - lst respondent herein and thereby setting aside Ex. A-2 appellate order dated 24. 3. 1977 of the 1st defen-dant-2nd respondent herein (The Commissioner, H. R. & C. E.) in a. P. No. 29 of 1976 on his file and also the original order in O. A. No. 37 of 1974, dated 18. 5. 1974 passed by the 2nd defendant 3rd respondent herein (The Deputy commissioner, H. R. & C. E. ). The said suit was filed under Sec. 70 of the tamil Nadu Hindu Religious and Charitable Endowments act, 1959 (hereinafter referred to as 'the Act' ).

(2.) ORIGINALLY the above said Deputy Commissioner initiated suo motu action to modify the scheme relating to the suit temple, of which the plaintiff claimed to be the hereditary trustee. The Deputy Commissioner sought to so modify under Sec. 64 ( 5) (b) of the said Act. The original scheme relating to the suit temple was framed according to the plaintiff, by Ex. A-3 judgment dated 24. 1. 1924 passed by the court of the District Munsif of Kancheepuram in O. S. No. 384 of 1920. That was a suit for a declaration that the plaintiffs therein were hereditary Dharmakarthas of the suit temple along with the defendants therein. There, no doubt it was held that there was no evidence as to when the suit temple was built and who built it. However, the said court found that the plaintiffs 1 to 3, 6, 8, 12, 15 and 16 therein were hereditary Dharmakarthas of the suit temple along with the defendants therein. According to the present plaintiff, the above said plaintiffs in O. S. No. 384 of 1920, in whose favour , the above said decree has been given, were his forefathers. The further plea of the plaintiff is that pursuant to Ex. A-3, the then existing Hindu Religious and Charitable endowment Board, in O. A. No. 221 of 1927 framed a scheme for the suit temple by order dated 11. 1. 1928 taking into consideration the above said decision in O. S. No. 324 of 1920. Further, according to the plaintiff, under clause (5) of the said scheme, the actual management of the suit temple has to be carried on by three executive trustees, one of whom shall be a member of the family of Venkatachal a Mudaliar (16th plaintiff therein, who is said to be the ancestor of the present plaintiff) and that all the three trustees shall be elected by the community in the manner provided in the scheme. The further plea of the plaintiff is that the said scheme was sought to be cancelled in O. S. No. 11 of 1928 on the file of District Court, Chingleput . But the said suit was dismissed and the scheme was approved and as such according to the plaintiff the scheme must be deemed to be one framed by the civil court and the above said Deputy Commissioner under the Act has no jurisdiction to modify the said scheme already framed by the court under Sec. 64 (5) (a)and (b) of the Act. His further plea is that under the above said original scheme, the administration of the suit temple has to be carried on by the Board of Trustees, representing 12 families referred to therein, with a special provision for the plaintiff s family, who shall always be one of the Executive Trustees to be elected by the community. This particular provision giving special right to the plaintiff's family had been deleted in the modified scheme of the Deputy commissioner and, therefore, the present suit has been filed after the plaintiff has failed before the commissioner also.

(3.) BUT the law is not that the scheme framed by the court cannot be modified at all by the Deputy Commissioner. No doubt in the above referred to Sri Kailasanathaswami Devasthanam v. Chockalingam Chettiar , (1981)1 M. L. J. 159, it was held by this Court that pursuant to the proviso to sec. 64 (5) (a) in respect of certain court Schemes mentioned therein, the Deputy commissioner could modify the scheme 'only subject to such conditions and restrictions as may be prescribed'and in that case it was found on facts that at the relevant point of time, the said Rules prescribing the above said conditions and restrictions were not framed and that is why it was held in that decision that since the said Rules had not been prescribed, the Deputy Commissioner had no power to modify those kinds of court scheme. The learned counsel for respondents 4 and 5 contends that the said proviso would apply even to the present case though coming under Sec. 64 ( 5) (b) of the Act and that since in the present case also, in 1971, there were no such rules, it should be held that the Deputy Commissioner had no power to modify the original scheme, which according to the said counsel, was a court scheme as contemplated in the said proviso. I am unable to agree with this submission. The proviso relates only to Sec. 64 (5) (a) and not to sec. 64 (5) (b ). Only underneath Sec. 64 (5) (a), the proviso is found in the enactment and thereafter only comes Sec. 64 (5) (b ). No doubt, both Secs. 64 (5) (a) and 64 (5) (b) deal with modification of any pre-existing scheme by the Deputy Commissioner. BUT Sec. 64 (5) (b) deals with modification by the Deputy commissioner where he is satisfied that there is the above said inconsistency. On the other hand, Sec. 64 (5) (a) deals with modification of any scheme. There may be even any other factual necessities for modification of a scheme and such modifications would come under Sec. 64 (5) (a ). BUT though Sec. 64 (5) (a) is worded generally, in view of Sec. 64 (5) (b) providing for a particular situation as stated above, I think Sec. 64 (5) (a) should be held to be providing for a modification other than the modification contemplated under Sec. 64 (5) (b ). So, in that sense, Sec. 64 (5) (a) and Sec. 64 (5) (b) are mutually exclusive. Only in the case of Sec. 64 (5) (a), the proviso therein will apply, that is in certain cases of court Schemes modification could be done by the Deputy Commissioner, subject to such conditions and restrictions as may be prescribed. BUT that qualification to the power given to the Deputy Commissioner is not there in the case of his power to modify under Sec. 64 (5) (b ). If really he is satisfied that there is the above said inconsistency, he is free to modify the original scheme and the Legislature has not thought it fit to fetter the said power with any restrictions or conditions as contemplated in the case of modification under sec. 64 (5) (a) of the Act.