M.O. MUTHUKRISHNAN, MANAGING TRUSTEE OF SRI PACHIAMMAN TEMPLE Vs. THE COMMISSIONER, HINDU RELIGIOUS AND CHARITABLE ENDOWMENTS AND ANR.

JUDGEMENT

(1.) THE petitioner is the Managing Trustee of Sri Pachaiamman Temple, Mount Road, Madras. He had applied and obtained from the Deputy Commissioner, Hindu Religious and Charitable Endowments, a certificate under Section 101 of Madras Act XXII of 1959, that a certain property belongs to Sri Pachaiamman Temple. Such certificate would thereafter enable the petitioner to Obtain delivery: of possession of the property by application to the Magistrate. At that stage, on the initiative of the 2nd respondent a lessee of the property, the first respondent, Commissioner, Hindu Religious and Charitable Endowments, purporting to exercise powers of revision conferred on him under Section 21 of Madras Act (XXII of 1959), cancelled the certificate. It is alleged that the main reason which led the Commissioner to interfere with the grant of the certificate was that the 2nd respondent was in possession of the property as a cultivating tenant and it would not be proper for the trustee of the temple to dispossess a cultivating tenant. The petitioner has challenged the order of the Commissioner in this writ petition under Article 226 of the Constitution and prays for the issue of a writ of certiorari quashing the above order.

(2.) LEARNED Counsel appearing for the petitioner draws my attention to the specific terms of Section 21(1) of Madras Act (XXII of 1959). That section gives the power to the Commissioner to call for and examine the record of any Deputy or Assistant Commissioner, for the purpose of satisfying himself as to the regularity of such proceeding or the correctness, legality or propriety of any decision or order passed therein. But he has no jurisdiction to deal in the above manner with a proceeding in respect of which a suit or an appeal to a Court is provided by the Act. Learned Counsel for the petitioner refers to the terms of Section 101. The third proviso to Section 101(1)(b) states that nothing contained in Section 101(1)shall bar the institution of a suit by any person aggrieved by an order under Section 101(1) for establishing his title to the said property. According to the learned Counsel for the petitioner, the terms of this third proviso to Section 101(1)(b) would make the issue of a certificate by the Deputy Commissioner a matter outside the jurisdiction of the powers of the Commissioner to revise, under Section 21 of the Act. Learned Counsel for the petitioner seeks to draw support for this argument from the decision of a Bench of this Court reported in R.V. & Co. v. Hindu Religious Endowments Board : AIR1940Mad10 , which arose under the Madras Hindu Religious Endowments Act (II of 1927). Section 76(1) of that Act stated that no exchange, sale or mortgage and no lease for a term exceeding five years of any immovable property belonging to any math or temple shall be valid or operative unless it is necessary or beneficial to the math or temple and is sanctioned by the Board in the case of maths and excepted temples and by the committee in the case of other temples. Section 76(2) stated that the trustees of the math or temple or any person having interest may, within one year of the date of the order of the Board or Committee under Sub -section (1), apply to the Court for modifying or cancelling such order. Section 34(2)(b) of Act (II of 1927) gave power to the Board to call for any record or proceedings or other document or paper from any committee for the purpose of satisfying itself as to the correctness, regularity or propriety of any order or proceedings recorded or passed by such committee. The Hindu Religious Endowments Board purported to exercise its power under Section 34(2)(b) of Act (II of 1927) in that case and took steps for cancelling the lease. At that stage the lessee applied to the High Court for the issue of a writ of certiorari. Sir Henry Lionel Leach, C.J., who gave the judgment of the Bench, observed that Section 76 must be regarded as an exception to Section 34 and that the Board had no jurisdiction to cancel a lease granted under Section 76(1) in exercise of its power of revision under Section 34 and the proper way of modifying a legal lease would be to take steps under Section 76(2) by applying to the Court.

(3.) THERE was a further argument by the learned Counsel for the petitioner that the power of the Deputy Commissioner was exercised by delegation from the Commissioner under Section 13, that the power which the Deputy Commissioner thus exercised is really the power of the Commissioner and therefore the Commissioner cannot review the orders of the Deputy Commissioner. I am unable to appreciate the force of this argument. If the Commissioner exercises the power which the statute has conferred on him, clearly he cannot revise his own order under Section 21. But where the Deputy Commissioner exercises a power on the strength of a general delegation from the Commissioner, the Commissioner as the supervising authority can rely upon Section 21 to correct erroneous or illegal orders passed by the Deputy Commissioner exercising in a specific case powers under a general delegation. I see no legal impediment to the exercise of the power by the Commissioner under Section 21 in this case.