SHANMUGHA PERAYYAR Vs. STATE OF MADRAS

JUDGEMENT

(1.) THE State Government passed G. O. Ms. No. 2773 Home, dated 3-10-1958, extending the provisions of the Madras Hindu Religious and Charitable endowments Act, 1951 to Odacheri Chatram and water Pandal charity at Odacheri village in Tiruthuraipundi taluk. The notification to that effect followed certain findings by the State Government on charges of improper administration of the endowment. The petitioner instituted O. S. No. 250 of 1959 on the file of the court of the District Munsif, Tiruthuraipundi for a declaration that the notification was without jurisdiction. The suit was dismissed in June 1960 and the appeal arising therefrom also failed on 21-8-1961. It appears, a second appeal, which was filed, was dismissed by this court even at the admission stage. This petition was tiled in january 1962, apparently after disposal of the second appeal, to quash the notification.

(2.) THE notification was mad by the State Government in exercise of powers vested in it by S. 3 of the Madras Hindu Religious and Charitable Endowments Act 1951. That Act, by S. 6 (4), defined 'charitable endowment' to mean all property given or endowed for the benefit of, or used as of right by, the Hindu or the Jain community or any section thereof, for the support or maintenance of objects of utility to the said community or section. Section 3 provided that where the government had reason to believe that any Hindus or Jain public charitable endowment was being mismanaged and was satisfied that in the interests of the administration of the endowment it was necessary to extend the provisions of the act, it could do so by notification in the official Gazette after following the procedure prescribed in the proviso to the section. The definition of 'charitable endowment' and S. 3 both manifestly relate to Hindu Public charitable endowments which are not exclusively Hindu in character. That was held by this court in State of Madras v. Seshachalam Chettiar Charities, 1960-2 Mad LJ 591. Rajagopalan and Srinivasan JJ. In that case were of the view:

(3.) BUT, in the circumstances, which will be adverted to presently, the petitioner will not be entitled to the benefit of the foregoing observations. The petitioner, as I said, in the suit asked for a declaration that the impugned notification was without jurisdictional on the ground that the properties in question did not constitute a trust and that if they did, the trust was a private one. No objection to the validity of the notification was raised in the suit on the ground that he charity was not exclusively confined to the Hindus. That suit was against the State Government and was devoted to an attack on the validity of the notification. That being the case, the petitioner should have raised the objection to the validity of the notification on the ground as well of the charity not being exclusively devoted to the Hindus. In my view, therefore, the petitioner cannot be allowed to take the point by means of this writ petition. In fact, it appears the petition under Art. 226 of the Constitution has been filed only after the termination of the civil litigation, after the termination of the civil litigation, after the disposal of the second appeal at the admission stage. In effect, this petition is to make up for the omission of the petitioner in the suit. On the ground that the point was open to the petitioner in the suit, but nevertheless was not taken, which ought to have been taken, I am unable to accept the contention for the petitioner that he can agitate the point by means of this petition.