V.K. SOMASUNDARAM CHETTY Vs. GANGA BAI AMMAL

JUDGEMENT

(1.) THE petitioner in this writ petition prays for the issue of a writ of mandamus or any other appropriate writ directing the third respondent herein, namely, the Deputy Commissioner (Judicial), Hindu Religious and Charitable Endowments (Administration) Department Madras -34, to dismiss O.A. No. 104 of 1969 filed by the first respondent and pending on his file. The said O.A. was filed by the first respondent herein under Sections 63 (a) and (b) of the Tamil Nadu Hindu Religious and Charitable Endowment Act, 1959 (Tamil Nadu Act XXII of 1959) (hereinafter referred to as the Act) to declare Sri Paripoorna Chakra Vinayakar Temple situate at No. 1, Veeraswami Pillai Street, Periamet, Madras -3, as a public temple and to declare the first respondent as the continuing hereditary trustee. The petitioner herein filed I.A. No. 127 of 1972 requesting the third respondent herein to consider and decide whether the said O.A. is maintainable at all as a preliminary issue. His contention was that one Kamalammal filed O.A. No. 150 of 1955 under Section 57 (a) of the Madras Hindu Religious and Charitable Endowments Act, 1951 (Tamil Nadu Act XIX of 1951) for a declaration that the said temple was not a temple falling within the scope of the Act and that a declaration was granted by the Deputy Commissioner, Hindu Religious and Charitable Endowments (Administration) Department, Madras, by his order, dated 22nd August, 1958, that that order, therefore, has become final and that in view of the finality of that order, the present O.A. No. 104 of 1969 preferred by the first respondent herein was not maintainable. The said I.A. No 127 of 1972 was dismissed by the Deputy Commissioner (Judicial), Hindu Religious and Charitable Endowments (Administration), namely, the third respondent, on 4th December, 1972 holding that the decision in O.A. No. 150 of 1965 does not operate a res judicata so as to bar the present O.A. No. 104 of 1969. Against this order of the Deputy Commissioner, the petitioner herein preferred an appeal to the Commissioner, Hindu Religious and Charitable Endowments (Administration) Department, namely, the second respondent herein, under Section 69(1) of the Act, and the second respondent, on 14th March, 1973, dismissed the appeal. It is thereafter the present writ petition has been filed.

(2.) MR . Thiruvengadam, the learned Counsel for the first respondent, raised two preliminary objections to the maintainability of the writ petition itself. One objection is that the petitioner herein having preferred on appeal to the second respondent against the order of the third respondent under Section 69(1) of the Act, the only remedy available to the petitioner is now to file a suit in a civil Court as contemplated by Section 70 (1) of the Act, and without resorting to that remedy, the petitioner cannot invoke the jurisdiction of this Court under Article 226 of the Constitution of India. His second objection is that the petitioner having preferred I.A. No. 127 of 1972 inviting the third respondent to decide the question of maintainability of O.A. No. 104 of 1969 as a preliminary issue and an adverse decision having been rendered by the third respondent against the petitioner which was confirmed by the second respondent on appeal, the petitioner cannot pray for the issue of a writ of mandamus to forbear the third respondent from proceeding with O.A. No. 104 of 1969 without praying for quashing the orders passed by the third and second respondents herein. I am of the opinion that the preliminary objections raised on behalf of the first respondent are well -founded. If, according to the petitioner, the order of the Deputy Commissioner passed in I.A. No. 127 of 1972 is one which can be appealed against to the Commissioner under Section 69(1) of the Act certainly, the only remedy then available to the petitioner is to institute a suit in a civil Court to set aside or modify the order of the Commissioner as provided for under Section 70 of the Act, and that being the express statutory remedy made available to a person like the petitioner, he cannot ignore that remedy and approach this Court under Article 226 of the Constitution of India. Equally, the petitioner having invited the third respondent and the second respondent herein to adjudicate on the merits of his contention that O.A. No. 104 of 1969 is not maintainable, it is not open to him to ignore the orders passed by the third and second respondents and to pray for the issue of a writ of mandamus straightaway without having taken steps to have those orders set aside or quashed. Therefore, both the preliminary objections raised by the learned Counsel for the first respondent are well -founded, and on that ground itself, the writ petition is liable to be dismissed.

(3.) THE learned Counsel for the first respondent drew my attention to two significant features in this behalf. The first is, there is absolutely no provision either in the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1951, or in the Act providing that the order of the Deputy Commissioner is final. The second is, both under the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1951 as well as under the Act there is a provision for the Commissioner suo moto revising the order of the Deputy Commissioner at any time he likes (Section 61(2) of the 1951 Act and Section 69 (2) of the Act) and therefore the order of the Deputy Commissioner cannot be contended to be final. It is significant in this context to compare the provisions contained in Section 84 of the Tamil Nadu Hindu Religious Endowments Act, 1927 (Tamil Nadu Act II of 1927) with the corresponding provisions in the 1951 Act and in the Act. Section 84(1) of the Tamil Nadu Act II of 1927 provided for the settlement of disputes as to certain matters including whether an institution is a math or temple as defined in that Act by the Board. Sub -section (2) of that section provided, that any person affected by a decision under Sub -section (1) may, within six months, apply to the Court to modify or -set aside such decision. Sub -section (3) stated that from every order of a District Judge, on an application under Sub -section (2), an appeal shall lie to the High Court within three months from the date of the order. According to Sub -section (4), subject to the result of an application under Sub -section (2) or of an appeal under Sub -section (3) the decision of the Board shall be final. Thus, a comparison of the relevant provisions contained in the Tamil Nadu Act II of 1927 with these contained in the 1951 Act and in the Act will clearly show that there is no express provisions giving finality to the decision of the Deputy Commissioner.