AVALOOR ARULMIGHU DHARMARAJA DEVASTHANAM AND MARIAMMAN THIRUKOVIL Vs. COMMISSIONER H R AND C E ADMINISTRATION DEPT

JUDGEMENT

(1.) THE petitioner, claiming to be the Hereditary Dharamakartha of Avaloor Arulmighu Dharmaraja Devasthanam and Mariamman Thirukovil, has questioned the order of the Commissioner, H. R. and C. E. Administration Department dated 26. 8. 2002 and the order of the Assistant Commissioner, H. R. and C. E. Administration Department, Vellore dated 2. 9. 2002. In the proceedings dated 26. 8. 2002, in exercise of power under Section 46, as the annual income of the temple in question exceeded Rs. 10,000/= it was directed to be included in the list of temples earning more than Rs. 10,000/= but below Rs. 2,00,000/=. In the proceedings dated 2. 9. 2002, the Inspector, H. R. and C. E. Administration Department, Arakkonam was appointed as a fit person of the temple. The petitioner, on the claim that he is a hereditary trustee, has questioned both the orders basically on the ground that before the impugned orders were passed, he was not issued with the notice. As to whether the petitioner is entitled to a notice or not, the issue in question as to whether the petitioner is a hereditary trustee should be first decided. The claim of the petitioner that he is a hereditary trustee is based on the copies of sale deeds dated 10. 12. 1920, wherein reference is made in respect of certain individuals as managing the affairs of the temple. According to the learned counsel for petitioner, the petitioner being the grandson of one Srinivasa Naicker, who was appointed as a trustee followed by his son Kannappa Naicker, claims that he is a hereditary trustee. Section 6 (11) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (hereinafter referred to as "the Act") defines "hereditary trustee" as meaning the trustee of a religious institution, the succession to whose office devolves by hereditary right or is regulated by usage or is specifically provided for by the founder, so long as such scheme of succession is in force. The petitioner though claims to be the hereditary trustee on the basis of the above sale deeds, the sale deeds refer to some four or five names. The petitioner, claiming to be the legal heir of one Kannappa Naicker, claims to be the hereditary trustee. In terms of Section 63 (b), a declaration is contemplated by the Joint Commissioner of H. R. and C. E. Department declaring a person to be a hereditary trustee. The petitioner has not obtained such a declaration. Consequently the petitioner had approached the civil Court in O. S. No. 158 of 2002 for an injunction restraining the Assistant Commissioner, H. R. and C. E. Department, Vellore and three individuals from interfering with his right to the conduct of festival. In the pleadings, it is the stand of the petitioner that the temple belonged to the villagers and the community. It is the specific case that his father A. S. Kannappan was selected as Dharmakartha of the temple. It is his further case that after the demise of his father on 15. 11. 99, he was selected by the villagers as Dharmakartha. From the averment in the plaint, it is seen that the petitioner was selected only as Dharmakartha for the purpose of conduct of festival, which is held once in a year. He has not claimed that he is the hereditary trustee of the temple in the said plaint. Moreover, in the absence of any documents to show that after two sale deeds the petitioner was functioning as hereditary trustee and any declaration was obtained under Section 63 (b) of the Act. Even from the plaint it is seen that the temple is a village temple and belongs to the villagers.

(2.) ON the above background, it is now to be considered as to whether the Commissioner would be justified in bringing the temple under the list of temples under Section 46. The petitioner has not neither questioned nor disputed the income of the temple exceeding Rs. 10,000/= per year. If that be the case, the Commissioner is empowered to invoke Section 46 (i) to publish the temple in question for the purpose of levy of contribution under sub-section (1) of Section 92. Such an order has been passed on 26. 8. 2002. I do not find any merit in the challenge to the said order.

(3.) COMING to the order of the Assistant Commissioner dated 2. 9. 2002, in terms of the last proviso to Section 49 the Assistant Commissioner may, in the case of any religious institution which has no hereditary trustee, appoint a single trustee namely, a fit person. When once this Court comes to the conclusion that the petitioner is not a hereditary trustee, the invocation of the last proviso to Section 49 by the Assistant Commissioner cannot be said to be bad.