N.H.M. PANDIAN, ZAMIMDAR OF UTHUMALAI, AND HEREDITARY TRUSTEE OF SRI NAVANEETHAKRISHNASWAMI TEMPLE, VEERAKERALAMPUDUR, TENKASI Vs. THE DEPUTY COMMISSIONER, HINDU RELIGIOUS AND CHARITABLE ENDOWMENTS (ADMN.) MADURAI AND ANOTHER

JUDGEMENT

(1.) This appeal under the Letters Patent is from an order of Srinivasan J, dismissing a petition to quash an order of the first respondent dated 30th March 1963, by which he framed certain additional charges against the appellant and pending enquiry into the charges, appointed the second respondent as a fit person. In making the appointment, the first respondent considered that by reason of the suspension a temporary vacancy had occurred and it became necessary to act under S. 54 (2) and (3). He was mindful of the claim of the eldest son of the appellant, but because he was at the time only 19 years of age, and was a student studying in the IX standard, he was considered to be not capable of managing the affairs of the temple. That is how he appointed the second respondent, a stranger to the family of the appellant, a fit person to carry on the functions of the hereditary trustee. There is no dispute that the office of trusteeship is hereditary and the administration of the temple of Navaneetha -krishnaswami is governed by a Scheme framed by this Court in A. S. 165 of 1956. The appellant contended before the learned Judge that the first respondent, acting as he did under S. 54 (2) and (3) in appointing a fit person, misdirected himself and the order was therefore without jurisdiction. This contention did not find favour with the learned Judge. He was of the view that though the first respondent was not right in citing S. 54 (2) of Madras Act 22 of 1959, he had power to make the appointment under S. 53 (4). In the course of his order, the learned Judge also considered that an interim suspension pending an enquiry could not be said to give rise to a temporary vacancy within the meaning of S. 54 (2) and for this reason also, he considered that the proper Sec. which would be applicable to appointment of a fit person in case of suspension pending an enquiry, was S. 53 (4). Before us, Mr. Vedantachari, for the appellant argues there being no dispute that the office of trusteeship in the temple is hereditary, and though the power to appoint a fit person in a contingency like this is provided for in S. 54 (4), the manner of making the appointment of a fit person is laid down in S. 54 (3) and it follows, therefore, that in appointing a fit person, the Deputy Commissioner concerned should have due regard to the claims of members of the family, if any, entitled to the succession. Learned Counsel urges that due regard in this case had not been paid by the first respondent to the claims of the eldest son of the appellant and that the grounds for eliminating him from appointment as a fit person were not tenable.

(2.) S. 53 of the Act provides for power to suspend, remove or dismiss a trustee of a religious institution. Sub -S. (2), while conferring the power, enumerates the grounds on which punishment of one or the other category can be imposed. Sub -S. (3) prescribes the procedure to be followed in enquiries under Sub -S. (2). Sub -S. (4) reads:

(3.) Sec. 54 relates to filling up of vacancies in the office of hereditary trustee. The first part of the Sec. is to the effect that when a permanent vacancy occurs in the office of the hereditary trustee, the next in the line of succession shall be entitled to succeed to the office. A similar provision is made by Sub -S. (2) in respect of a temporary vacancy and it says that when such a vacancy occurs under Sub -S. (2) of S. 53, the next in the line of succession shall be entitled to succeed. Under these two Sub -Sections it may be noticed, the next in the line of succession is entitled to succeed as a matter of right. Sub -S. (3) covers filling up of permanent or temporary vacancies arising in certain other contingencies, one of them being when such a vacancy cannot be filled up immediately, and provides for appointment of a fit person to perform the functions of the trustee. The Sub -Section has an explanation which directs that in making an appointment the Deputy Commissioner should have regard to the claims of members of the family, if any, entitled to the succession. The scheme of S. 54 appears to be that, where a vacancy arises, whether permanent or temporary, it should be filled up by the next in the line of succession, but if there is any dispute about succession or the vacancy cannot be filled up for other reasons, instead of filling up the vacancy, power is given for appointment of a fit person, so that the functions of the hereditary trustee may be continued to be discharged pending filling up of the vacancy. Sub -S. (2), which as we said relates to a temporary vacancy, covers cases of suspension under Sub -S. (2) of S. 53, and a perusal of Sub -S. (2) of S. 53 shows that a suspension need not necessarily be by way of punishment. Cl. (a) of Sub -S. (2) empowers suspension on the ground that the trustee ceases to profess the Hindu religion. Similarly Cls. (f) and (g) of the Sub -Section enable suspension in cases of the trustee being of unsound mind or an undischarged insolvent. It is, therefore, clear that Sub -S. (2) of S. 54 not merely covers a temporary vacancy arising from suspension by way of punishment, but also extends to a suspension not by way of punishment. It may be possible, therefore, to assume that Sub -S. (2) of S. 53, because of the power to suspend on enquiry, may include also a power of dispensing pending an enquiry. But Sub -S. (4) of S. 53 specifically provides for such a contingency, while suspension by punishment is separately dealt with by Sub -S. (2) of S. 53 and also by Sub -S. (5) of S. 53, which provides for appeal against orders made under Sub -S. (2) of that section. It becomes, therefore, clear that as Sub -S. (4) makes a specific provision for suspension pending an enquiry, such a power is, therefore, not covered by the other provisions which provide for suspension following an enquiry. We are of the view, therefore, that suspension pending an enquiry does not fall within the ambit of S. 54, because of the principle that a special provision excludes the general.