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PETITIONER: T.L.THATHACHARIAR,

       Vs.

RESPONDENT: THE COMMISSIONER, H.R.C.E.  & ORS.

DATE OF JUDGMENT:       02/09/1998

BENCH: SUJATA V.  MANOHAR, G.B.  PATTANAIK.

ACT:

HEADNOTE:

JUDGMENT: JUDGEMENT SUJATA V.  MANOHAR, J. Leave granted. These  appeals  pertain  to   a   scheme   for   the administration  of  Devarajaswamy Temple at Kancheepuram and Trusteeship of the said temple.  The scheme  was  originally settled in 1909 in an application made originally before the District Court  of  Chengalpattu, Tamil Nadu being O.S.  No. 11 of 1907.  This application was filed under section 539 of the Civil Procedure Code  of  1882.    Ultimately  when  the matter came before the High Court and the scheme was settled on  15th of November, 1909, the Civil Procedure Code of 1908 had come into force and the scheme was framed under  Section 92 of  the  Code  of  civil  Procedure  1908.    This scheme thereafter remained in force until it was  modified  by  the High Court of  Madras  on  17.11.1941  in  A.S.  No.  175 of 1934.  This modification was done  under  the  Madras  Hindu Religious  Endowments  Act  (Act  2  of  1927)  (hereinafter referred to as the Act of 1927) which was then in force. In 1965 the Deputy Commissionerr of Hindu  Religious and  Charitable  Endowments,  Madras  initiated  proceedings under  Section  64(5)  of  the  Madras  (Tamil  Nadu)  Hindu religious  and  Charitable Endowments Act, 1959 (hereinafter referred to as the Act of 1959) which was then in force, for the modification of the scheme settled by the High Court  by its order  of  17.11.1941.  These proceedings were contested by Kanchepuram Thathachariar family who contended  that  the Deputy Commissioner had no jurisdiction to modify the scheme settled by  the  High  Court  of Madras in 1941.  The Deputy Commissioner, however, passed an order  in  the  proceedings initiated  under Section 64(5) of the Madras Hindu Religious and Charitable Endowments Act,  1959  holding  that  he  had jurisdiction to modify the scheme. The  present  appellant  filed  a  writ petition No. 2468 of 1969 before the High Court of Madras challenging the order of the Deputy Commissioner.   The  writ  petition  was dismissed by  a  single  Judge  of  the  High  Court.   This judgement was upheld in appeal by a Division  Bench  of  the Madras  High Court by its judgement and order dated 6.7.1970 (T.D.  Thathachariar  Vs.    Deputy  Commissioner,  [1970  2

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M.L.J.  475]).  The Deputy Commissioner, however, thereafter by his order dated 3.10.1973 decided to drop the proceedings under Section  64(5).  In appeal, however, the Commissioner, Tamil  Nadu  Hindu  Religious  and   Charitable   Endowments remanded the matter to the Deputy Commissioner. The  Deputy  Commissioner  thereafter  on  25.6.1982 initiated proceedings under Section 64(5) of the Act of 1959 for modification of the scheme settled by the High Court  of Madras in   1941.     The  Deputy  Commissioner  proposed  a modification of the  entire  scheme  against  which  a  writ petition  was  filed  before the High Court of Madras to set aside the scheme so proposed.  The writ petition so filed by the appellants was dismissed by a Single Judge of the Madras High Court.  Writ Appeal No.  122 of 1987 was  filed  before the   Division  Bench  of  the  Madras  High  Court  by  the appellant. On 12.2.1987 another Writ Petition No.  2082 of 1987 was filed by the appellant  before  the  Madras  High  Court challenging the validity of Section 64(5) and 118 of the Act of 1959.    This  writ  petition  was  dismissed by the High Court.  The appellant preferred Writ Appeal No.  141 of 1987 against the said judgement and order.  Both the writ appeals 122 of 1987 and  141  of  1987  were  heard  together  by  a Division Bench  of  the  Madras  High  COurt.  Both the writ appeals were dismissed by the High  Court  by  the  impugned judgement.    The   present  appeals  arise  from  the  said judgement dated 2.5.1997 of the Division Bench of  the  High COurt of Madras. The  appellant contends that the Deputy Commissioner has no jurisdiction under Section 64(5) of the Act  of  1959 to modigy a scheme originally framed under section 92 of the Civil Procedure  Code  by  the Madras High Court.  To decide this  issue  it  is  necessary  to  look  at  the   relevant provisions  of  the  various  Acts which have governed Hindu Religious Endowments in the State of Tamil Nadu.  The scheme as originally framed was  under  Section  92  of  the  Civil Procedure Code.    Thereafter  the  Madras  Hindu  Religious Endowments Act (Act 2 of 1927) came into force.  Section  75 of the said Act of 1927 is as follows:-         "Section 75:    Where  the   administration   of   a         religious   endowment  is  governed  by  any  scheme         settled under  section  92  of  the  Code  of  Civil         Procedure  1908,  such scheme shall, notwithstanding         any provisions of this Act which may be inconsistent         with the provisions of such scheme, be deemed to  be         a scheme settled under this Act; and such scheme may         be  modified  or cancelled in the manner provided by         this Act. Therefore, the scheme in the present case which was  settled under  Section  92  of  the Code of Civil Procedure 1908 was deemed to be a scheme settled under the said  Act  of  1927. Section 57(9) of the said Act of 1927 provided as follows:-         "Section 57(9):      Any  scheme  of  administration         settled by a court under this section or which under         section 75 is deemed to be a  scheme  settled  under         this  Act  may, at any time for sufficient cause, be         modified or cancelled by the court on an application         made by the Board  or  the  trustee  or  any  person         having interest but not otherwise." Therefore, under the said Act of 1927 the existing scheme in the present case could be modified or cancelled by the court on  an  application made by the Board (constituted under the said Act) or the trustees or any person having interest.  It was  in  exercise  of  this power under Section 57(9) of the said Act of 1927 that the scheme was settled by  the  Madras

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High Court by its order of 17th of November, 1941. The  said  Act  of  1927 was succeeded by the Madras Hindu Religious and Charitable Endowments Act (Act No. 19 of 1951) (hereinafter referred to as the  said  Act  of  1951). Section   103   of  the  said  Act  of  1951  provided  that "notwithstanding the repeal of the  Madras  Hindu  religious and   Charitable   Endowments   Act  being  Act  2  of  1927 (hereinafter referred to as ’the  said  Act’).....  (d)  all schemes  settled  or modified by court of law under the said Act or under Section 92 of the code of Civil Procedure  1908 shall  be  deemed  to  have  been settled or modified by the court under this Act". Section 103(d) is as follows:-         "Section 103(d):  all schemes settled or modified by         a  court  of law under the said Act or under section         92 of the Code of Civil Procedure,  1908,  shall  be         deemed to  have  been  settled    or modified by the         Court  under  this  Act  and   shall   have   effect         accordingly. Therefore,  the  existing  scheme in the present case was deemed to be a scheme under the said Act of 1951. Section 62(3)(a) of the said Act of 1951 provided as follows:-         "Section 62(3)(a):        Any    scheme    for   the         administration of a religious institution settled or         modified by the Court in a  suit  under  sub-section         (I)  or  on  an  appeal under sub-section (2) or any         scheme deemed under section 103, clause (d) to  have         been  settled  or  modified by the Court may, at any         time, be modified or cancelled by the  Court  on  an         application  made  to  it  by  the Commissioner, the         trustee or any person having interest. Therefore, under the provision of  Section  62(3)(a) of  the  said  Act  of  1951, the scheme in the present case which was deemed to be a scheme under the said Act  of  1927 by  virtue  of Section 103(d) could be modified or cancelled by the court under Section 62(3)(a) of the new Act  of  1951 No such modification was, however, made. The Act of 1951 was succeeded by the  Madras  (later renamed  as  Tamil  Nadu)  Hindu  Religious  and  Charitable Endowments Act being Act22 of 1959.  Section 118 of the said Act  of  1959  repealed  the  Madras  Hindu  Religious   and Charitable   Endowments   Act   of   1951.   However,  under sub-section 2(a) of Section 118, notwithstanding the  repeal of  the said Act (Act XIX of 1951), scheme settled or deemed to have been settled under the said Act, i.e. the Act of XIX of 1951 shall, in sc far as they are not  inconsistent  with this  Act, be deemed to have been settled by the appropriate authority under the corresponding provisions  of  this  Act, and  shall  have effect accordingly. Section 118(2)(a) is as follows:-         "Section 118(2)(a):  all rules made,  or  deemed  to         have been made, notifications or certificates issued         or  deemed  to  have  been  issued, orders passed or         deemed to have been passed decisions made or  deemed         to  have  been  made, proceedings or action taken or         deemed to have been taken, schemes settled or deemed         to have been sattled and things done  or  deemed  to         have  been done by the Government, the Commissioner,         a Joint  Committee  or  an  Assisttant  Commissioner         under  the said Act, shall in so far as they are not         inconsistent with this Act, be deemed to  have  been         made,  issued, passed, taken, settled or done by the         appropriate  authority   under   the   corresponding         provisions   of  the  Act,  and  shall  have  effect         accordingly. As  a result, the  present  scheme  which  became  a  deemed

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scheme  framed under the Act of 1951, was now deemed to have been settled under the said Act of 1959  by  an  appropriate authority under the corresponding provisions of the said Act of 1959. Under  section 64 of the said Act of 1959, the power to settle schemes is  conferred  on  Joint  Commissioner  or Deputy  Commissioner.  Sub-section  5(a) of Section 64 deals with modification or cancellation of a scheme in  force.  It is as follows:-         "Section  64(5)(a):  The  joint  Commissioner or the         Deputy  Commissioner  may,  at   any   time,   after         consulting   the   trustee  and  the  person  having         interest by order, modify or cancel  any  scheme  in         force  settled  under sub-section or modified by the         Board under the Madras  Hindu  religious  Endowments         Act, 1926 (Madras Act II of 1927), or deemed to have         been  settled  under that Act or any scheme in force         settled    or     modified     bby     the     Joint         Commissioner/Deputy Commissioner or the Commissioner