Senior advocate Singaravelan / (SCHEME) TEMPLES SCREAM I PRELUDE:- 1) Our Dravidian rationale is the cause for so many land marking judgments on the basic law of our country even now and out of all two are of much constitutional importance and values according to me as they saved our time immemorial vedic practices, values and agamas including those who are following the same and upholding the incredible Hindu dharma.
Senior advocate Singaravelan /
(SCHEME) TEMPLES SCREAM
I PRELUDE:-
1) Our Dravidian rationale is the cause for so many land marking judgments on the basic law of our country even now and out of all two are of much constitutional importance and values according to me as they saved our time immemorial vedic practices, values and agamas including those who are following the same and upholding the incredible Hindu dharma.
2) They are Seshammal case reported in (1972) 2 SCC 11 and Adi Sivachariyarhal Sangam case reported in (2016) 2 SCC 725 which gave much importance to our religious practices and rituals and top of all it gave a right even to a worshipper to question any deviation in the agamic principles and vedic practices followed in the temples.
3) In the recent past not only the priests, trustees and the worshippers but also the Gods are made to knock the doors of justice in the Courts and wait in the long que for their turn and judicial verdict.
4) Whenever my attention is drawn to our Dravidian rationale the following famous words of De Lolme would occupy my mind.
“The British parliament can do everything but make a man a woman a woman a man”
It is a famous maxim attached to the Swiss born political theorist Jean- Louis De Lolme (1740-1806). He included it in his 1771 work called Constitution de Angleterre otherwise called the Constitution of England, 1771.
5)Interestingly, during a House of Common debate in 2004, a member voted when the Gender Recognition Act was passed commented that the Parliament was in a legal sense doing precisely what the above quote claimed was impossible a possible.
6) Yes such a mind of the group making a stone a God and God a stone has driven me to pen down this Article on the manner of appointment of the trustees and their tenure fixed by the schemes settled or deemed to have been settled under the Madras Hindu Religious and Charitable Act, 1926 and 1951 after the enactment of the 1959 Act.
7) The following questions frequently arise for consideration on the innovative interpretation given by our administrators:-
a)Whether Modification under Section 64(5)(a) and (b) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 or deemed Eradication of any inconsistent or repugnant provision in the schemes settled or deemed to have been settled under the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1926(Madras Act II of 1927) and Tamil Nadu Hindu Religious and Charitable Endowments Act, 1951 under Section 118(2)(a) and 118(2)(b) of the Act, 1959?
b) What is the difference between 118(2)(a) and 118(2)(b)(i) of the 1959 Act as the former uses the word ‘inconsistency’ and the latter uses the word ‘repugnant’
c) What is the effect of election provision in the scheme and the tenure of the trustees so elected after the 1959 Act?
d) Whether the two Division Bench Judgments decided out and out on the basis of Section 118(2)(b)(i) and Section 47 of the Act, 1959 without even referring to other relevant provisions of the Act are correctly decided.
II) OUTLINE:-
8) There are so many community temples which are listed temples under Section 46 of the Act, 1959 managed by a particular community in this State. For example, Chennai Arulmigu Kandhakottam Kandha Swamy Temple, meant for Beri Chetty Community, Arulmigu Kalıhambal Temple meant for Viswakarma community and Kanchipuram Adhikamatchi Temple meant for Viswakarma etc., are governed by a scheme framed at the instance of the members of the Community by the Court.
9)As they are the community temples the administration of those temples is left to the Trust Board constituted by the elected members of the community from the community for the period of 3 or 5 as the case may be and the same would be approved by the Government normally. The tenure of the elected trustees is as fixed in the scheme either 2 or 3 or 5 years as the case may be. Now, after the 1959 Act what is the legal impact of the provisions in the scheme settled or deemed to have been settled under 1926 Act and 1951 Act providing for the election and fixing the tenure of more than two years for the trustees so elected.
III DISCUSSION:-
1926 Act:-
10) Chapter III of the Act, 1926 speaks about the constitution of the temple committees by election and Section 27 mandatorily says that every member elected is entitled to election to hold the office of the committee member for the period of 5 years from the date when his election or appointment is published in the prescribed manner in the following words:-
“27. Save as otherwise expressly provided, every member of a committee shall be entitled to hold the office for a term of five years from the date when his election or appointment is published in the prescribed manner.”
1951 Act:-
11) Under the 1951 Act also the very same period of 5 years is fixed for the committee of trustees under Section 39(3) of the said Act. Section 39 of the Act, 1951 is relevant to the question involved here and hence it is reproduced below:-
“39. Trustees and their number and terms of office:-
1) Where a religious institutions included in the list published under Section 38 or over which no Area Committee has jurisdiction, has no hereditary trustee, the Commissioner shall constitute a Board of Trustees consisting of not less than three and not more than five persons appointed by him.
2)Where any such institution has at the commencement of this Act, both a hereditary trustee or trustees and a non-hereditary trustee or trustees, the Commissioner shall have power to appoint a non- hereditary trustee or trustees, the Commissioner shall have power to appoint a non-hereditary trustee or trustees as and when vacancies in their number.
3) Every trustee appointed under Section (1) or Sub-Section (2) shall hold office for a term of five years, unless in the meanwhile the trustee is removed or dismissed his registration is accepted by the Commissioner or he otherwise ceases to be a trustee.”
1951 Act and 1959 Act:-
12) Now coming to the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 Section 38 of the 1951 Act is analogous to Section 46 of the 1959 Act as both speak about the listed temples on the basis of the annual income of the temple. Section 39 of 1951 Act is analogous to Section 47 of the 1959 Act. But, a cursory glance at both the Sections ie., Section 39 of the Act 1951 and Section 47 of the 1959 Act would clearly reveal that Section 39 of the old Act is more clear in terms and expression in respect of the power appointment of the Trustees by the Commissioner whereas Section 47 of the 1959 Act does not confer such a general power to appoint trustees like that of Section 39(1) and 39(2) of the old Act 1951 though what is said briefly but firmly in Section 39(1) is elaborately said in Section 47 (1) of the Act with certain additions for the inclusion of a Schedule Caste or Scheduled Tribe and a Woman candidate in the Board of Trustees.
13) For the convenience of all concerned Section 47 of the Act,
1959 is reproduced below:-
“47. Trustees and their number and term of office:-
(1)[(a) Where a religious institution included in the list published under section 46 or in respect of which the Assistant Commissioner has no power to appoint trustees, has no hereditary trustee,-
(i)in cases falling under clause (i) of section 46, the Joint Commissioner / Deputy Commissioner;
(ii)in cases falling under clause (ii) of section 46, the Commissioner; and
(iii)in cases falling under clause (iii) of section 46, the Government, shall constitute a Board of trustees:
[Provided that the Board of Trustees constituted under items (i) and (ii) of this clause shall, subject to the provision of clause (c), consist of three persons appointed by the Joint Commissioner or the Deputy Commissioner or the Commissioner, as the case may be, from among the panel of names of persons sent by the District Committee concerned under sub-section (4) of section 7-A:]
Provided further that, in addition to the persons appointed by the Joint Commissioner/Deputy Commissioner or the Commissioner under item (i) or (ii) of this clause, as the case may be, the Government may nominate two persons who are qualified for appointment as trustees under this Act, as members of the said Board of
Trustees, having regard to the following matters, namely:-
(a)the interest of the public generally;
(b)the income and the properties of the religious institutions;
(c)the number of worshippers and importance of the religious institutions as a pilgrim centre; and
(d)such other matters as may be prescribed.
(e)In respect of all the incorporated and unincorporated Devaswoms in the transferred territory, shall constitute a single Board of Trustees.
(f)Every Board of Trustees constituted under clause (a) or clause (b) shall consist of not less than three and not more than five persons, of whom one shall be a member of the Scheduled Castes or Scheduled Tribes [and another one shall be a woman.
Provided that [the Government, the Commissioner, the Joint Commissioner or the Deputy Commissioner] [Substituted by Tamil Nadu Act 39 of 1996.], as the case may be, may, pending the constitution of such Board of Trustees under this subsection, appoint a fit person to perform the functions of the Board of Trustees
(2)[ Where, in the case of an institution included in the list published under section 46 having a hereditary trustee or trustees, [the Government, the Commissioner or the Joint/Deputy Commissioner after notice to such trustee or trustees and after such inquiry as [the Government, the Commissioner or the Joint/Deputy Commissioner as the case may be, deems adequate, considers for reasons to be recorded, that the affairs of the institution are not, and are not likely to be, properly managed by the hereditary trustee or trustees, [the Government, the Commissioner or the Joint/Deputy Commissioner, or he otherwise ceases to be a trustee.
(3)Every trustee appointed under sub-section (1) and subject to the result of an application, if any, filed under sub-section (4), every non-hereditary trustee appointed under sub-section (2) shall hold office for a term of one year unless in the meanwhile the trustee is removed or dismissed or his resignation is accepted by the Government, the Commissioner or the Joint Commissioner/Deputy Commissioner, as the case may be or he otherwise ceases to be a trustee.
Provided that every trustee who has completed a term of office of one year on the 16th day of July 2006 shall cease to hold office forthwith and ” every trustee who completes a term of office of one year after such date shall cease to hold office on such completion.
(4)Where the Government, the Commissioner or the Joint/Deputy
Commissioner by order, appoints a non-hereditary trustee or trustees, the hereditary trustee or trustees may, within thirty days of the receipt of the order, file an application to the Court to set aside or modify such order:
Provided that the Court shall have no power to stay the order of [the Government, the Commissioner or the Joint/Deputy Commissioner as the case may be pending the disposal of the application.”
14) Whether the above reservation under Section 47(1)(f) of the Act, 1959 can be insisted for a community temple meant for the particular community, denominational temple and the scheme temple without the modification of the scheme is to be answered in the negative as it would amount to an interference with the fundamental right of the devotees of a denominational sect or community members who have established those temples.
15) Apart from Articles 25 and 26 of the Constitution of India even Sections 105 and 107 of the Act, 1959 protect the rights of those communal, denominational and scheme temples. As far as the scheme temples are concerned, the scheme can be modified without affecting the basic features of the temple practices and agamic principles. Section 64(5) read with the Scheme Rules, 1960 notified in G.O.Ms.No. 4851, Revenue, dated 26.11.1960 called the Framing of Scheme Rules of 1960 prescribes a mandatory procedure to be followed for the modification of the scheme.
16) When Section 47(2) of the Act, 1959 confers power of appointment of the trustees on Government and other departmental authorities for the temples having hereditary trustee or trustees on a condition that there must be improper management of the Institution by the hereditary trustee or trustees, Section 47(1) does confer power on the department when there is no hereditary trustee for the listed temples. Even that power can be exercised only after thorough consideration of all the facts and circumstances and recoding of reasons. So, the power under Section 47(2) of 1959 Act is not the same power to that of the power conferred under Sections 39 (1) and 39(2) of the Act, 1951.
17) Section 47(1) of the Act, 1959 mandatorily says even in the first line of the Section that the Institution should have no hereditary trustee which would clearly convey that the power of appointment under Section 47 (1) can be exercised only when there is no hereditary trustee for the Institution and the Assistant Commissioner has no power to appoint trustees.
18) As Section 39(1) of the Act, 1951 and 47(1) of the Act, 1959 specifically mention the non-availability of the hereditary trustee as a condition precedent for the appointment of the trustees under the above mentioned respective provisions now we have to find out the meaning of the words“ has no hereditary trustee” mentioned in section 47(1) of the 1959 Act. The only meaning which can safely be given to those words is the non-availability of a person in the hereditary chain or due to the absence of a legal heir to succeed.
19) Another possible interpretation is that the department can exercise the power of appointment under Section 47(1) for the temples where there is no hereditary trustee concept at all from the beginning. Except that no other extended meaning can be given to Section 47(1) of the Act, 1959 so as to include even the power of appointment of the trustees for the scheme temples, denominational temples and community temples without consulting the persons or trustees in charge of those temples and adopting the procedure for the modification of the scheme under Section 64(5) of the Act, 1959.
20) To put it in other words though the power of appointment of trustees under Sections 47, 49 and 49-A is available to the Department as per section 50 of the Act, 1959, it can be exercised only by way of modification of the scheme under Section 64(5).
Now let us see what Section 50 of the 1959 Act says Section
50 runs as follows:-
“The power to appoint trustees under Section 47 or Section 49 or Section 49 A shall be exercisable notwithstanding that the scheme, if any, settled or deemed under this Act to have been settled for the institution contains provision to the contrary.”
21) Section 47 as already seen speaks about the power of appointment of trustees when there is no hereditary trustee or when the Institution concerned is not properly managed.
22) Section 49 speaks about the power of appointment of the trustees by the Assistant Commissioner for the religious Institutions not included in the list under Section 46 and Section 49-A speaks about the appointment of the trustees for the Institutions subsequently included in the list under Section 46 of the 1959 Act.
23) As reproduced above Section 50 confers power on the department to exercise its powers under the above mentioned those provisions to appoint trustees irrespective of any contrary provision found in the scheme. Neither Section 50 nor Section 47 prescribes a procedure to be followed for the exercise such a power for the scheme temples. It is trite that when there is a power there must be procedure for the exercise of such a power and no power is an unbridled power and can be exercised arbitrarily as per the whims and fancies of the authorities concerned.
24) That is why Section 64(5) prescribes a procedure for the modification or cancellation of the scheme read with Rules called ‘Framing of Scheme Rules, 1960 notified in G.O.Ms.No.4851, Revenue dated 26.11.1960.
25) Now, coming to the tenure of the trustees so appointed under the above provisions 47(3) of the 1959 Act says mandatorily that they shall hold office for two years.
26) Clause (3) of Section 47 makes it very clear that the term of office of 2 years mentioned by it is only for those trustees appointed under clause (1) or clause (2) of Section 47 and not for other categories of trustees elected or appointed under a scheme in force on the date of commencement of the Act, 1959.
27) It is to be mentioned here that undoubtedly the power of appointment under Sections 47, 49 or Section 49-A is applicable as per Section 50 even for the scheme temples irrespective of any contrary provisions in the scheme. At the same time Section 52 of the 1959 Act makes everything clear that every non hereditary trustee holding the office lawfully on the commencement of the Act, 1959 shall deemed to have been appointed under the Act, 1959 for the residue of his term of office in the following words:-
“Every non-hereditary trustee lawfully holding office on the date of the commencement of this Act, shall be deemed to have been duly appointed as such trustee under this Act for the residue of his ten of office on the date of such commencement.”
Thus, Section 52 of the Act, 1959 makes it clear that the trustees elected or appointed before the 1959 enactment as per the provisions of the former Acts, are recognized by the 1959 enactment.”
28) Further, the Hon’ble High Court of Madras has dealt with a case where the interpretation of the words ‘residue of his term of office’ got involved and concluded that when a trustee is appointed for his life time under a scheme he cannot be disturbed at all for the whole of his life time unless and otherwise he comes to the adverse notice of the authorities concerned and further held that the limited tenure fixed by the statutory provision cannot be made applicable to him in the absence of any steps for the modification of the scheme.
29) Section 47(3) of the 1959 Act makes it clear that the tenure of 2 years mentioned by it is applicable only in case of appointment fallen under either clause (1) or (2) of Section 47 and not for other nature of appointments particularly the appointment under the scheme settled or deemed to have been settled under 1951 Act in view of Section 103(d) of the 1951 Act read with Section 118(2)(a) and 64(5) of the 1959 Act.
30) Like that Section 47(3) does not fix the tenure of 2 years for the scheme framed under Section 64 (1) of the 1959 Act also.
31) A combined reading of Sections 47 to 52 of the Act, 1959 read with Sections 64(1), 64(5)(a) and 118 (2)(a) and (b) of the 1959 Act would reveal that the tenure of 2 years fixed for the trustees is applicable only for the trustees appointed under clause (1) or (2) of Section 47 of the 1959 Act and not to any other modes of appointment of the Trustees under the Act particularly to the trustees appointed under the scheme, though the power is available to the department for the appointment of the trustees even for the scheme temples by following the procedure under Section 64(5)(a). 32) As per the judgement rendered in the following cases by the Hon’ble High Court of Madras on the term ‘residue of the term of trustee” and the Constitutional Bench Judgment of the Hon’ble Apex Court on Section 103(d) read with Section 62(3) of the 1951 Act on the modification of the scheme in case of inconsistency and the judgment of the Madras High Court on the scheme it is clear that the tenure of 2 years fixed under Section 47 of the Act, 1959 cannot be extended to other modes of appointment of the trustees under a scheme settled or deemed to have been settled under the old Acts of 1926 and 1951 or the scheme settled under Section 64(1) of the 1959 Act by the Departmental authorities as mentioned in those provisions.
33) If such a wider interpretation is given to Section 47(3) inspite of its restricted applicability so as to make it applicable automatically even to the trustees appointed under the scheme then the effect of Section 64 (5) of the 1959 Act for the modification of the scheme framed under the old Acts by the Court would become meaningless and ineffective.
34) When a particular provision is clear and categorical in nature the literal interpretation of the same alone has to be taken into account in the absence of any other contrary or conflicting provision available in the same enactment to give a different meaning.
35) Without adopting such a procedure under Section 64(5) one cannot contend that the term or tenure fixed for the specific categories of appointment under clauses (1) and (2) Section 47 is to be made applicable automatically to all other categories of appointment of the trustees also under the different provisions of the Act, 1959 particularly the trustees appointed under a scheme.
36) Now the three case laws mentioned in the earlier part of this brief can be dealt with to understand the real impact of the provisions in the Act dealing with the appointment of the Trustees and their tenure.
37) In the case reported in 71 LW 365 in the last para at p. 367 the Learned Judge has held as follows:-
“I am inclined to consider that Section 42 and 39 abrogate only the provisions in regard to the number and not in regard to the qualifications to be prescribed by persons to be appointed as trustees. If any particular scheme contained provisions which were found different to work to the detriment of the institution, the proper mode of removing the hardship would be, not by ignoring the provisions of the scheme but by having the scheme amended by the appropriate proceedings in that behalf…”
38) In fact Section 42 of the 1951 Act is analogous to Section 50 of the Act, 1959 and section 39 of the Act 1951 is general in nature could be made applicable to the appointments of the trustees by all the modes unlike Section 47 of the Act, 1959.
39) In Krishna Chettiyar -VS- Ramar Chettiyar and another 74 LW 20, the Learned Single Judge of Madras High Court has considered the scope of Sections 39, 41 and 44 of the Act, 1951 which are analogous to Sections 47, 49 and 52 of the Act, 1959 and held as quoted below.
40) The contention on behalf of the Government in the above case is that the term of office of the trustees as per Section 39(3) of the Act, 1951 is 5 years and hence even the life time trustee elected by the community under the scheme settled or deemed to have been settled under the Act, 1951 has to loose his life time tenure and he has to vacate the office on the completion of 5 years period as per Section 44 of the Act, 1951.
41) The learned single Judge of this Hon’ble Court at p.22 in the last but one para has held as follows:-
“The Learned Additional Government Pleader places considerable reliance upon Section 44 of the Act 1951 which states:
“Every non-hereditary trustee lawfully holding office at the commencement of this Act shall be deemed to have been duly appointed trustee under this Act for the residue of his term of office at such commencement.”
This provision according to the Learned Additional Government Pleader, would impose all the qualifications contained under Section 39 and 41 to every trustee albeit he was appointed by virtue of an election by the community and even that trustee could hold office only for a period of 5 years from the date of his appointment or till the date of coming into operation of the Act, whichever is later, and that thereafter he should be considered to be only in the position of a de-facto trustee. I am unable to agree with this contention…’
Thus, it is clear from the above decisions that the provision in the scheme or a practice followed by a community stands irrespective of what is contrary found in the Act.
42) In a Constitutional Bench Judgment case reported in 1964 SCC Online SC 158, the Apex Court has categorically held at the end of para 10 negating the contention of the petitioner therein that the scheme framed earlier to 1951 Act has to be tested to find out whether it is consistent with the 1951 Act in view of Section 103 (a) of the 1951 Act as it cannot be automatically held inconsistent or repugnant. Para 10 of the above judgment is reproduced below for the convenience of all concerned:-
“….In fact, unless modifications are made in the scheme under Section 62(3), the scheme as a whole, will be deemed to have been made under the latter Act and will be enforced as a valid scheme. That clearly is the purpose of Section 103(d). Therefore, we do not think we are called upon to consider the further contentions raised by Mr. Sastri that some of the clauses in the scheme are Inconsistent with the provisions of the latter Act”
43) In view of the above decision on Section 103(a) and (b) which are analogous to Section 118(2)(a) and 64(5) it cannot be contended that the scheme deemed to have been settled under the Act, 1959 or any provision of such a scheme automatically becomes redundant being inconsistent with any of the provisions of the Act, 1959 or being repugnant to any of the provisions of the Act.
44) Whatever is found inconsistent or repugnant in the scheme or even a scheme as a whole can be taken away only by way of amendment or modification under Section 64(5) of the 1959 Act and not by way of exercise of power as per the sweet will of the authorities concerned.
45) If it is held that there is no need of any modification or amendment of the scheme under Section 64(5) of the Act, 1959 the Department or the officials may with ulterior motive presume something in the scheme as inconsistent or repugnant and ignore the scheme and proceed to pass order replacing any of the provisions of the scheme or uprooting the scheme itself arbitrarily according to their whims and fancies. That is why the sufficient safeguard is provided not only under the 1959 Act but also under the 1951 Act in the name of amendment or modification of the scheme.
46) When there is a provision to modify the scheme it is not only that the said provision alone is expected to be followed for the modification or amendment of the scheme but also that except that procedure prescribed under that Section no other procedure can be allowed.
47) This submission is based on the fundamental principle of law that when a statute requires a thing to be done in a particular manner then it must be done only in that manner and or not at all be done as laid down by the Hon’ble Apex Court in Cherukuri Mani w/o. Narendra Chowdari -Vs- Chief Secretary, Governor of Andhra Pradesh and others reported in (2015) 13 SCC 722 and also in OPTO Circuit India Limited-Vs- Axis Bank and others reported in (2021) 6 SCC 707.
48) Further, the Government in many cases attempt to interpret Section 118(2) of the Act, 1959 to mean that any provision contained in the scheme framed under 1926 Act which is repugnant to any of the provisions of the Act, 1959 the said provision automatically becomes void and hence no amendment or modification of the repugnant provision is required under Section 64(5) and the repugnant provision can be ignored straightaway as if there is no such provision.
49) Inview of the case laws, already discussed it is clear that no provisions in the scheme either under the 1926 Act or 1951 Act or 1959 Act can be ignored on the ground that it is inconsistent with the statutory provisions of the 1959 Act or repugnant to the same unless and otherwise the Government or the department chooses to go for modification under Section 64(5)(a) and (b) of the Act, 1959 as Section 64(5)(a) of the 1959 Act includes what is said in 118(2)(b) of the same Act.
The word repugnant is used in Section 118(2)(b) as it speaks about the schemes settled or deemed to have been settled before the birth of our Constitution.
50) As per the concise Oxford Dictionary the word repugnant or repugnancy means inconsistency. As 1926 Act is a pre constitutional one, the word repugnancy is used. Otherwise, the word ‘inconsistent’ used in 118(2)(a) and the word ‘repugnant’ used in 118(2)(b) conveys the same meaning. If more serious meaning than the word inconsistent used in 118(2)(a) is to be given irrespective of the dictionary meaning to the word ‘repugnant’ used in section 118(2)(b), then it is to be pointed out that a provision in the ‘scheme’ settled or deemed to have been settled under the 1926 Act, (Madras Act II of 1927) should have been specifically and expressly prohibited by a provision in the 1959 Act. None of the provisions in the 1959 Act prohibits election or the fixation of tenure for more than 2 years. In view of that the interpretation given to section 118(2)(b) as if it has made automatically the provisions in the scheme providing for election of the trustees and the tenure for more than two years is void cannot be an interpretation within the accepted principles of interpretation and is liable to be ignored in toto. This view is supported by Section 64(5)(a) itself which includes even the schemes settled or deemed to have been settled under 1926 Act.
51) Section 64(5)(b) provides for the modification of the inconsistent schemes which is equally applicable to both 1926 Act schemes and also the schemes settled or deemed to have been settled by the Court inview of the last line of section 64(5)(a) of the 1959 Act.
52) Section 64(5)(b) of the 1959 Act makes it clear that even the inconsistent provision can be made in conformity with the provisions of the 1959 Act in the following words:
64 (5)(b):- If [the Joint Commissioner or the Deputy Commissioner, as the case may be,] is satisfied that any such scheme referred to in clause (a) is inconsistent with this Act and the rules made thereunder, he may, at any time, after consulting the trustee and the persons having interest in the institution /…./, modify it in such manner as may be necessary to bring it into conformity with the provisions of this Act and the rules made thereunder.”
52) Section 64(5)(a) and (b) are more or less analogous to Section 103(a) and (b) of the 1951 Act which are reproduced below:-
“Effect of repeal of the Madras Hindu Religious Endowments Act, 1926 –
Notwithstanding the repeal of the Madras Hindu Religious Endowments Act, 1926 (Madras Act II of 1927) (hereinafter in this section referred to as the said Act) —
103(a):- All rules made, notifications or certificates issued, orders passed, decisions made, proceedings or action taken, schemes settled and things done by the Government, the Board or its President or by an Assistant 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 this Act and shall, subject to the provisions of clause (b), have effect accordingly.
Explanation – Certificates issued by the Board under section 78 of the said Act shall be deemed to have been validly issued under that section, notwithstanding that the certificates were issued before the making of rules prescribing the manner of their issue.
103(b):- if the Government are satisfied that any such rule, notification certificate, order, decision, proceeding, action, scheme or thing, although not inconsistent with this Act would not have been made issued, passed taken, settled or done, or would not have been made, issued, passed, taken, settled or done in the form adopted, if this Act had been in force at the time, they shall have power, by order made at any time within one year from the commencement of this Act , to cancel or to modify in such manner as may be specified in the order, the said rule, notification, certificate, order decision proceeding, action, scheme or thing, and thereupon, the same shall stand cancelled or modified as directed in the said order, with effect from the date on which it was made or from such later date as may be specified therein :
Provided that before making any such order, the Government shall publish in the Fort St. George Gazette a notice of their intention to do so, fix a period which shall not be less than two months from the date of the publication of the notice for the persons affected by the order to show cause against the making thereof and consider their representations, if any:”
53) As already discussed there is no much difference between the two words ‘inconsistency’ and repugnancy in meaning. As per the concise Oxford Dictionary the word ‘repugnancy’ means ‘inconsistency’ or incompatibility of ideas. So it is clear the word repugnancy is used in 118(2)(b) of the 1959 Act as it speaks about the schemes settled or deemed to have been settled under 1926 Act before our Constitution and hence the same meaning can be attached to it. Further, Section 64(5)(a) includes even those schemes under Section 118(2)(b) of the Act, 1959.
54) That apart when a stand was taken in T.Lakshmi Kumara Thathachariar case reported in (1998) 6 SCC 643, that the scheme settled by the Court cannot be modified at all by the Government, as it is settled by the Court and has become final.
The Hon’ble Apex Court has held that Section 64 (5) modification provision is applicable even to the schemes settled or deemed to have been settled by the Court.
55) In yet another case called Commissioner, HR and CE Administrative Department, Madras -Vs- P.S.Sethuraman (Smt) reported in (1999) 2 SCC 327 the Hon’ble Apex Court has reiterated the above view and held that appointment of the Executive Officer under Section 45 of the Act, 1959 could not have been made without modifying the scheme under Section 64(5)(b) of the Act, 1959.
56) From the above provisions it is manifestly clear that without undertaking the course for the modification of the scheme under Section 64(5)(b) even if there is inconsistency nothing can be done against any of the provisions of the scheme and the Government without adopting a procedure prescribed under Section 64(5) of the Act, 1959 and the Scheme Rules 1960 cannot ignore the scheme and pass orders affecting the rights of the persons under a scheme.
57) But, unfortunately, the Hon’ble Division Bench of Madras High Court in Area Committee, Hindu Religious Endowments –Vs- K.Kasinathan Padayachi reported in 197 SCC Online Mad 68 =AIR 1975 Mad 6 = 1975 (1) MLJ 94 = (1974) LW 716(2) has held that provision for the election of trustees in a scheme runs repugnant to Section 47 of the 1959 Act and hence it is void under Section 118(2)(b) and for that no modification or amendment of the scheme under Section 64(5) of the Act, 1959 is warranted.
58) The same view was taken by another Division Bench of Madras High Court recently on 20.08.2024 in W.A.No.2444 of 2022.
The very short Judgment of the Hon’ble Division Bench of the Chief Justice Veeraswami as he then was and Varadarajan.J Bench in Area Committee, Hindu Religious Endowments –Vs- K.Kasinathan Padayachi reported in(1974) 87 L.W 716(2) is reproduced below for the convenience of the readers as it is;-
“Madras Hindu Religious and Charitable Endowments Act (1950 and 1961), Ss.
47, 64(5)(b) and 118(2) (b) and C.P.C. S. 92—Scheme settled for a Temple by the Court— Appointment of Trustees, by the Asst. Commissioner, without amending the scheme—
Validity.
Where in a Temple for which a scheme had been settled by the Court, some of the trustees relinquished office due to old age, etc. and the Asst. Commissioner H.R. & C.E. appointed trustees for the Temple in that place, it was contended in the writ petition that so long as the scheme stood un-amended, the Assistant Commissioner had no power to appoint any trustees for the temple.
Held :
Rejecting the contention the Act is intended to be a comprehensive Code which amended and consolidated the law relating to the administration and governance of H.R. & C.E. institutions and Endowments in the State of Tamilnadu, so that, notwithstanding the provisions of the Act, it is not possible to hold that, even after the coming into force of the Act, Trustees of temples could be appointed only by election.
There being a specific provision in the Act, namely S. 47 for appointment of trustees to temples, and the power to make the appointment being vested in the authority named by the section, the provision in the scheme in this case to elect trustees is repugnant and therefore, the provision is void. If it is void and the provision in the Act is to prevail, then it becomes clear that there is no longer any scope for the argument, namely, that unless the scheme is amended the elective principles will hold the field and the Assistant Commissioner has no power to appoint trustees.
The effect of Ss. 64(5)(b) and 118(2)(b)(ii) is that the provision in the scheme, because it is void, can have no longer any force, and no amendment of the scheme is necessary in order to bring out the effect which is declared by the statute. Therefore, the scope of S. 64(5)(5)(B) will have to be confined to the amendment of the scheme not covered by S. 118(2)(b)(ii).
Decision of Alagiriswami, J. in W.P. 2650/1967 dt. 25th November 1962 reversed on appeal.
Writ appeal allowed.
The Government Pleader for Applt.
Mr. R.G. Rajan and Mr. R. Sundaralingam for Respts.
JUDGMENT
The Chief Justice:
1. The Court of the Subordinate Judge of Thanjavur at Mayuram, in O.S. 14 of 1919, settled a scheme for management of Sri Viswanathaswami temple at Devannoor village. ABoard of Trustees was constituted under this scheme which inter alia provided that, if any vacancy occurred by death or resignation or removal, it should be filled up by the majority of the resident villagers of Devannoor. In 1961, three persons were elected by the residents, of whom one Veeramuthu Padayachi was the managing trustee. He died in February 1961, and it was said that on 5th March 1961 the first respondent was elected in that vacancy. The other two trustees relinquished office due to old age and the Assistant Commissioner H.R. & C.E. appointed respondents 2 to 5 as trustees of the temple. Alagiriswami J quashed this order. The learned Judge took the view that so long as the scheme stood unamended the Assistant Commissioner had no power to appoint any trustees of the temple. He was also of the view that S. 118
(2)(b)(ii) could not be relied on by the Assistant Commissioner as it was irrelevant to the consideration of the question that arose in the case. Hence this appeal by the Assistant Commissioner, Hindu Religious and Charitable Endowments.
2. It seems to us that the view of the learned Judge as to the application of S. 118(2)(ii) cannot be sustained. S. 118 is one of the transitional provisions. At the time the Tamil Nadu H.R. & C.E. Act was enacted, there, were schemes settled by the erstwhile Hindu Religious and Charitable Endowments Board and also by courts under S. 92 C.P.C. The 1950 Act and 1959 Act brought about drastic changes in the control and administration of temples and specific endowments. The power to appoint trustees for temples, both listed and non-listed, was vested in the Commissioner or Assistant Commissioner, H.R. & C.E. and the period for which they could function is also fixed. The schemes which were settled by court, provided for appointment of trustees by it or by election or by other means, recognised by custom or usage. In view of this, the transitional provisions in Chap. XII were enacted, in order that uniformity could be achieved. Cl. (1) and (ii) of S. 118(2)(b) go together. The first of them deals with repugnancy between any provision in any scheme settled or deemed to have been settled in the present case under S. 92 C.P.C. 1908—and in force immediately before 30th September 1951 and the provision relating to the particular matter in the Act. In such an event Cl. (i) of S. 118(2)(b) declares that the provision in the scheme shall be void to the extent of repugnancy and pro tanto the corresponding provision in the Act will prevail. Cl. (ii) is the consequential provision. By enactment of S. 47 relating to appointment of trustees the elective principle applied to the constitution of a Committee of trustees has been done away with. The Tamil Nadu H.R. & C.E. Act is intended to be a comprehensive Code which amended and consolidated the law relating to the administration and governance of H.R & CE., institutions and endowments in the State of Tamil Nadu, so that, notwithstanding the provisions of the Act, it is not possible to hold that, even after the coming into force of the Act, trustees of temples could be appointed by election. There being a specific provision in the Act, namely, S. 47, for appointment of trustees to temples and the power to make the appointment being vested in the authority named by the section, the provision in the scheme in this case to elect trustees is repugnant and, therefore, that provision is void. If it is void and the provision in the Act is to prevail, then it becomes clear that there is no longer any scope for the argument, namely, that, unless the scheme is amended, the elective principles will hold the field and the Assistant Commissioner has no power to appoint trustees.
3. But it is contended that, since S. 64(5)(b) states that, if the Deputy Commissioner is satisfied that any such scheme referred to in clause (a) is inconsistent with the Act and the rules made thereunder, he may, at any time, after consulting the trustee and the persons having interest, modify it in such manner as may be necessary to bring it into conformity with the provisions of the Act and the rules made thereunder, the scheme should continue to have force until it is amended. In our opinion, this provision will have to be read in conjunction with S. 118(2)(b)(ii). Sec. 64(5)(b) applies to a case where the scheme is inconsistent with the Act and S. 118(2)(b)(ii) applies to a provision in the scheme repugnant to a provision in the scheme Act. In the latter case, S. 118(2)(b)(ii) specifically renders the repugnant provision in the scheme void. The effect is that the provision in the scheme because it is void, can have no longer any force and no amendment of the scheme is necessary in order to bring out the effect which is declared by the statute. It seems to us, therefore, that the scope of S. 64(5)(b) will have to be confined to the amendment of the scheme not covered by S. 118(2)(b)(ii).
4. On that view, the appeal is allowed with costs. Counsel’s fee Rs. 100.”
Then another Hon’ble Division Bench Judgment of the Madras High Courtin W.A.No.2444 of 2022 and C.M.P.No.18919 of 2022 dated 20.08.2024 in the same line but without referring to the above Division Bench has independently held that the tenure of 5 years fixed in the schemes runs contrary to Section 47(3) of the Act, 1959 and hence it is void as per Section 118(b)(i) of the said Act after reproducing the Sections 47 and 118 of the 1959 Act in the judgment without referring to other provisions of the 1959 Act particularly. Section 64(5)(a) and (b), Section 118(3) of the 1959 Act and 103(a),(b) and (d) of the 1951 Act read with Section 57(4) of the 1926 Act.
The said Judgment also for the benefit of the readers is reproduced below:-
“This Writ Appeal is directed against the order of the learned Single Judge, dated 08.08.2022 in W.P.No.18551 of 2022. The grievance of the appellants appears to be focused on the observations of the learned Single Judge rather than the decision which is only to consider the representation of the appellants afresh in the light of the observations made in the order.
2. The appellants filed the Writ Petition challenging the order passed by the first respondent vide G.O.No.75, dated 05.08.2020 and to quash that portion of the said Government Order which relates to the tenure of the appointment of the appellants as Dharmakarthas, which according to the petitioner is in violation of Rule 14 of the Scheme Decree and consequently, to direct the first respondent to revise the tenure of appointment of the appellants Dharmakarthas for a period of five years in terms of the Scheme Decree.
3. The learned Judge, while deciding the Writ Petition, consciously made observations after referring to the relevant provisions of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959. Sections 47, 50 and 118 of the Act reads as follows:-
” 47. Trustees and their number and term of offices.—(1) (a) Where a religious institution included in the list published under section 46 or in respect of which the
Assistant Commissioner has no power to appoint trustees, has no hereditary trustee-
(i) in cases falling under clause (i) of section 46, the Joint Commissioner /
Deputy Commissioner;
(ii) in cases falling under clause (ii) of section 46, the Commissioner; and
(iii) in cases falling under clause (iii) of section 46, the Government, shall constitute a Board of Trustees:
[Provided that the Board of Trustees constituted under items (i) and (ii) of this clause shall, subject to the provisions of clause (c), consist of three persons appointed by the Joint Commissioner or the Deputy Commissioner or the Commissioner, as the case may be, from among the panel of names of persons sent by the District Committee concerned under sub-section (4) of section 7-A:]
Provided further that, in addition to the persons appointed by the Joint Commissioner / Deputy Commissioner or the Commissioner under items (i) or (ii) of this clause, as the case may be, the Government may nominate two persons who are qualified for appointment as trustees under this Act, as members of the said Board of Trustees, having regard to the following matters, namely:
(a) the interest of the public generally ;
(b) the income and the properties of the religious institutions;
(c) the number of worshipers and importance of the religious institutions as a pilgrim center ; and
(d) such other matters as may be prescribed.
(b) in respect of all the incorporated and unincorporated Devaswoms in the transferred territory, [the Government] shall constitute a single Board of Trustees ;
(c) every Board of Trustees constituted under clause (a) or clause (b) shall consist of not less than three and not more than five persons, of whom one shall be a member of the Scheduled Castes or Scheduled Tribes [and another one shall be a woman] :
Provided that [the Government, the Commissioner, the Joint Commissioner or the Deputy Commissioner], as the case may be, may, pending the constitution of such Board of Trustees under this sub-section, appoint a fit person to perform the functions of the Board of Trustees.
(2) Where, in the case of an institution include in the list published under section 46 having a hereditary trustee or trustees, [the Government, the Commissioner or the Joint/Deputy Commissioner], after notice to such trustee or trustees and after such enquiry as [the Government, the Commissioner or the Joint/Deputy Commissioner], as the case may be, deems adequate, considers for reasons to be recorded, that the affairs of the institution are not, and are not likely to be, properly managed by the hereditary trustee or trustees, [the Government, the Commissioner or the Joint / Deputy Commissioner] may, by order, appoint a non-hereditary trustee or such number of non-hereditary trustees as may be considered necessary by [the Government, the Commissioner, or the Joint/Deputy Commissioner], as the case may be.
(3) Every trustee appointed under sub-section (1) and, subject to the result of an application, if any, filed under sub-section (4), every non-hereditary trustee appointed under sub-section (2) shall hold office for a term of [two years] unless in the meanwhile the trustee is removed or dismissed or his resignation is [accepted by the Government, the Commissioner or the Joint Commissioner / Deputy Commissioner, as the case may be], or he otherwise ceases to be a trustee.
Provided that every trustee who has completed a term of office of one year on the 16th day of July 2006 shall cease to hold office forthwith and every trustee who completes a term of office of one year after such date shall cease to hold office on such completion:
Provided further that every trustee who has not completed a term of office of one year on the date of commencement of the Tamil Nadu Hindu Religious and Charitable Endowments (Amendment) Act, 2010 (Tamil Nadu Act 12 of 2010) shall continue to be the trustee for the period of two years from the date of his appointment.
(4) Where [the Government, the Commissioner or the Joint / Deputy Commissioner], by order, appoints a non-hereditary trustee or trustees, the hereditary trustee or trustees may, within thirty days of the receipt of the order, file an application to the Court to set aside or modify such order :
Provided that the Court shall have no power to stay the order of [the Government, the Commissioner or the Joint / Deputy Commissioner], as the case may be, pending the disposal of the application.
50. Power under [sections 47, 49 and 49-A] to be exercisable notwithstanding provisions in scheme.- The power to appoint trustees under section 47 or section 49 [or section 49-A] shall be exercisable notwithstanding that the scheme, if any, settled, or deemed under this Act to have been settled for the institution contains provision to the contrary.
118. Repeals and savings.—(1) The Madras Hindu Religious and Charitable Endowments Act, 1951 (Madras Act XIX of 1951) (hereinafter in this section referred to as the said Act) is hereby repealed.
(2) Notwithstanding the repeal of the said Act by sub-section (1)
(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 settled and things done or deemed to have been done by the Government, the Commissioner, a Deputy
Commissioner, an Area Committee or an Assistant 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 this Act, and shall have effect accordingly ;
(b) (i) if any provision contained in any scheme settled or deemed to have been settled under the Madras Hindu Religious and Charitable Endowments Act, 1926 (Madras Act II of 1927), including a scheme settled under section 92 of the Code of Civil Procedure, 1908 (Central Act V of 1908), and in force immediately before the 30th September 1951 is repugnant to any provision contained in this Act or the rules made thereunder, the latter provision shall prevail, and the former provision shall, to the extent of the repugnancy, be void ;
(ii) all powers conferred and all duties imposed by such scheme on any Court or Judge or any other person or body of persons not being a trustee or trustees or an honorary officer or servant of the religious institution or endowment, shall be exercised and discharged by the Commissioner, [Joint Commissioner, Deputy Commissioner] [. . .] or the Assistant Commissioner, as the case may be, in accordance with the provisions of this Act;
(c) all orders made under section 67 of the Madras Hindu Religious Endowments Act, 1926 (Madras Act II of 1927) shall, notwithstanding that they are inconsistent with this Act, continue in force, but any such order may, at any time, be modified or cancelled by the [Joint Commissioner or the Deputy Commissioner, as the case may be], if it is an order made under sub-section (1) or sub-section (3) of that section and by the Commissioner if it is an order made under sub-section (4) or sub-section (5) of that section ; and any person aggrieved by any modification or cancellation made by the [Joint Commissioner or the Deputy Commissioner, as the case may be], may prefer an appeal to the Commissioner within such time as may be prescribed.
(3) The mention of particular matter in this section shall not be held to prejudice or affect the general application of sections 8 and 18 of the [Tamil Nadu] General
Clauses Act, 1891 ([Tamil Nadu] Act I of 1891), with regard to the effect of repeals.”
4. Sub-section (3) of Section 47 authorises the Government to appoint non-hereditary trustee under sub-section (1) of 47 for a term of two years or until the trustee is removed or resign. However, the appellants claim that they are entitled to be in office for a period of five years as per the scheme. There is a conflict between the scheme and the provisions of the statute. Section 118(b)(i) says that any scheme settled or deemed to have been settled under the Madras Hindu Religious and Charitable Endowments Act, 1926 (Madras Act II of 1927), cannot override the provisions of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959. In other words, any provision under the scheme which is repugnant to any of the provisions of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, to the extent of repugnancy, shall be treated as void.
5. The learned Judge, while directing the respondents to consider the representation of the appellants afresh, made a few observations that the appointment of the appellants should be in the manner sanctioned by the Act. This Court has seen that the order impugned in the Writ Petition is an order perfectly in accordance with the provisions of the statute. It is by the order impugned, this Court has directed the respondents to consider afresh. This has now been taken advantage by the appellants to impugn the order to enable them to get over the statutory restrictions that disables non-hereditary trustee to remain in office beyond the period of two years as per the statute.
6. Therefore, this Court finds no bonafides in this litigation and accordingly, this Writ Appeal is dismissed. In view of the facts narrated above, this Court is also of the view that the Writ Petition stands dismissed. No costs. Consequently, connected miscellaneous petition is closed.”
59) What the above Decisions, have conveyed is that there cannot be any provision in the scheme for the election and the fixation of tenure for more than 2 years as if Section 47 bars such a provision for election in the scheme of the trustee or trustees and they can be appointed only by the Joint Commissioner or the Commissioner or the Government as the case may be and not by way of election under that Section.
60) Both the judgments have not taken note of the impact of Section 118 (2)(b), 118 (3) of 1959 Act and Section 57 (4) of the 1927 Act, 64 (1) and 64 (5) of 1959 Act properly.
61) At the outset it can be said that the above judgments have not noted that section 64(5)(a) itself includes the schemes settled or deemed to have been settled under the 1926 Act and the schemes settled by the court under Madras Act II of 1927 in short 1926 Act are the deemed settlements as per section 57(4) of the 1926 Act. Further, the above Judgments have not taken note of the absence of any provision in the 1959 Act prohibiting the election of trustees under a scheme and in the absence of any such provision it cannot be said that the election provision in the scheme is void and hence it can be ignored.
62) Further, as already discussed above the word ‘repugnancy’ is used in 118(2)(b) of the 1959 Act only because it speaks about the schemes under the 1926 Act enacted before the birth of our Constitution. As per the concise Oxford Dictionary the word ‘repugnancy’ also means ‘inconsistently’.
63) Inview of the above facts the distinction made between 118(2)(a) and 118(2)(b) in the two Division Bench Judgments without taking note of the fact that even the schemes under the 1926 Act are mentioned in Section 64(5)(a) and 64(5)(b) speaks about the modification of the inconsistent provisions in the scheme, the two Division Bench Judgments are required to be revisited.
64) Now let us examine the above provisions of law to deal with the above Division Bench Judgments.
65) Section 57 (4) of Hindu Religious & Charitable Endowments Act, 1927 runs as follows:-
“57(4):- Any scheme of administration which has been 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 in a suit instituted by the Board or the trustee or any person having interest but no otherwise.
66) It is clear from the above provision that any scheme settled by the Court under the 1926 Act must be deemed to have been settled under the 1927 Act.
67) Section 64(5)(a) of the 1959 Act has included such a scheme also in full breadth and length and for our convenience the said Section is reproduced below again:-
“64(5)(a):-The Joint Commissioner or the Deputy Commissioner, as the case may be, may, at any time, after consulting the trustee and the persons having interest, by order, modify or cancel any scheme in force settled under sub-section (1) or any scheme in force settled or modified under sub-section (1) or any scheme in force settled 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 by the Joint Commissioner or the Deputy Commissioner, as the case may be, or the Commissioner under this Act, or any scheme in force settled or modified by the Court in a suit under Sub-Section (1) of Section 70, or an appeal under Sub-Section (2) of that Section or any such scheme in force deemed to have been settled or modified by the Court under Clause (a) of Sub-Section (2) of Section 118……”
68) As evidenced from the above quoted provision it is clear that even the schemes settled or deemed to have been settled under the 1926 Act are included in Section 64(5)(a) of the Act, 1959 in the following words,
“any scheme in force settled 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,”
69) As the Act II of 1927 was enacted before our Constitution the word repugnancy is used and not for making the things and the schemes done under the 1927 Act little comparing to the things done or scheme framed under the Act, 1951.”
70) Above all Section 118(3) of the Act, 1959 makes it clear in the following words:-
“118(3):- The mention of a particular matter in this Section shall not be held to prejudice or affect the general application of Sections 8 and 18 of the Tamil Nadu General Clauses Act, 1891 (Tamil Nadu) Act I of 1981), with regard to effect of repeals”
71)So, it is necessary to reproduce Sections 8 and 18 of the above Act, called the Tamil Nadu General Clauses Act, 1891 below for the convenience of the readers.
Section 8 of the Tamil Nadu General Clauses Act runs as
follows:-
“8:- Where any Act, to which this Chapter applies, repeals any other enactment, then the repeal shall not –
(a) affect anything done or any offence committed, or any fine or penalty incurred or any proceedings begun before the commencement of the repealing Act; or
(b) revive anything not in force or existing at the time at which the repeal takes effect; or
(c) affect the previous operation of any enactment so repealed or anything duly done or suffered under any enactment so repealed; or
(d) affect any right, privilege, obligation or liability, acquired, accrued or incurred under any enactment so repealed; or
(e) affect any fine, penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repeal; or
(f) affect any investigation, legal proceeding or remedy in respect of any such right, privilege obligation, liability, fine, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such fine, penalty, forfeiture or punishment may be imposed, as if the repealing Act had not been passed.”
72) Section 18 of the Tamil Nadu General clauses Act runs as follows:-
18. Where an act repeals and re-enacts, with or without modification, all or any of the provisions of a former Act, references in any other Act to the provisions so repealed shall be construed as references to the provisions so re-enacted, and if notifications have been published, proclamations or certificates issued, powers conferred, forms prescribed, local limits definds offices established, orders, rules and appointments made, engagements entered into, licences or permits granted, and other things duly done, under the provisions so repealed, the same shall be deemed, so far as the same are consistent with the provisions so re-enacted, to have been respectively published, issued, conferred, prescribed, defined, established, made, entered into, granted or done, under the provisions so re-enacted.
73) In view of the above provisions, it is clear that the things done under the 1926 Act are protected so far they are not inconsistent with the 1959 Act and if they are inconsistent, it can be rectified by way of involving 64(5)(a) of the 1959 Act, and per 64
(5)(b) of the 1959 Act.
74) The words “deemed to have been settled under that Act” means the scheme settled by the Court under the Act, 1926 as per Section 57(4) of the Act, 1959 already reproduced.
75) So, it cannot be contended that Section 64(5) is not applicable at all to the matters fallen under Section 118(2)(b)(1) of the Act, 1959 which runs as follows:-
“If any provision contained in any scheme settled or deemed to have been settled under the Madras Hindu Religious Endowments Act, 1926 (Madras Act II of 1927), including a scheme settled under Section 92 of the Code of Civil Procedure, 1908(Central Act V of 1908) and in force immediately before the 30th September, 1951 is repugnant to any provision contained in this Act or the rules made thereunder, the latter provision shall prevail, and the former provision shall, to the extent of the repugnancy, be void;”
76) The scheme settled or deemed to have been settled under the 1926 Act is included in Section 64(5) of the 1959 Act itself and hence we need not travel to any other provision of law to confirm that Section 64(5) of the Act, 1959 is available even to the schemes under 1926 Act.
77) Further, Section 64(5)(a) of the Act itself in the last line includes even the schemes in force deemed to have been settled or modified by the Court under Clause (a) of Sub-Section (2) of Section 118 in the following words:-
“64(5)(a);- The Joint Commissioner or the Deputy Commissioner, as the case may be], may, at any time, after consulting the trustee and the persons having interest, by order, modify or cancel any scheme in force settled under sub-section (1) or any scheme in force settled 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 by the Joint Commissioner or the Deputy Commissioner, as the case may be], or the Commissioner under this Act, or any scheme in force settled or modified by the Court in a suit under sub-section (1) of section 70, or on an appeal under sub-section (2) of that section or any such scheme in force deemed to have been settled or modified by the Court under clause (a) of subsection (2) of section 118 ;
Provided that such cancellation or modification of a scheme in force settled or modified by the Court in a suit under sub-section (1) of section 70 or on an appeal under subsection (2) of that section or of a scheme in force deemed to have been settled or modified by the Court under clause (a) of subsection (2) of section 118 shall be made only subject to such conditions and restrictions as may be prescribed.”
78) In view of the last line of Section 64(5)(a), it cannot be contended that Section 118(2)(a) of the Act, 1959 speaks only about the schemes settled or deemed to have been settled and things done or deemed to have been done by the Government, the Commissioner, a Deputy Commissioner, an Area Committee or an Assistant Commissioner under the said Act…” without giving importance to the word “and” between the two phrases, namely, “Schemes settled or deemed to have been settled” and “things done or deemed to have been done ….”
79) The word “and” would clearly indicate that the “schemes settled or deemed to have been settled are general and common in nature and it cannot be restricted only to the schemes framed by the Government and its authorities alone.
80) If such a restrictive interpretation is given, Section 103(d) of the Act, 1951 and 64(5)(a) would be rendered meaningless as the last line of Section 64(5)(a) speaks about “any such scheme in force deemed to have been settled or modified by the Court under clause (a) of sub section (2) of section 118;”
81) Section 103(d) of the Act, 1951 is reproduced below for the convenience of all concerned:-
“103. Notwithstanding the repeal of the Madras Hindu Religious Endowments Act, 1926 (Madras Act II of 1927) (hereinafter in this Section referred to as the said Act)
(d) all schemes settled or modified by a Court of law under the said Act or under Section 92 of the Code of Procedure 1908 (Central Act V of 1908), shall be deemed to have been settled or modified by the court under this Act and shall have effect accordingly;
82) Now, the first line of Section 118(2)(a), runs as follows:-
“(a) all rules made or deemed to have been made notifications or certificates issued or deemed to have been made passed, decisions made or deemed to have been made, proceedings or action taken or deemed to have been taken…”
83) The above words would include even Section 103(d) of the Act, 1951, and if any different interpretation is given, it would make all the schemes deemed to have been settled under Section 103(d) of the Act ineffective and no scheme fallen within the meaning of Section 103(d) of the Act can survive. That is why the schemes settled or deemed to have been settled mentioned in Section 118(2)(a) would include even the schemes settled or deemed to have been settled by the Court and the schemes settled or deemed to have been settled under the 1926 Act as per Section 64(5) (a) of the Act itself.
84) Further it cannot be contended that when there is any inconsistency in the scheme, it cannot be treated as a scheme under the 1959 Act, in view of Section 64(5)(b) which mandatorily runs as follows:
64 (5)(b) If [the Joint Commissioner or the Deputy Commissioner, as the case may be,] is satisfied that any such scheme referred to in clause (a) is inconsistent with this Act and the rules made thereunder, he may, at any time, after consulting the trustee and the persons having interest in the institution /…./, modify it in such manner as may be necessary to bring it into conformity with the provisions of this Act and the rules made thereunder.
85) Thus, it is clear that modification is provided even for the inconsistent provision in the scheme under Section 64(5)(b) of the Act, 1959.
86) Like that if anything prohibited by 1959 Act is found in the scheme framed under the 1926 Act, then to that extent the provision in the scheme under 1926 Act can be said to be void butthere must be an opportunity of being heard and the procedure under 64(5)(b) has to be followed to make it valid.
Consequently, it cannot be contended that what is not prohibited under the 1959 Act is contained in the scheme and hence it is void. For example, the election for appointment to the trustees under the scheme is not prohibited in any of the provisions of the Act and hence it cannot be deemed to have been prohibited in view of Section 47(1) or 47(2) of the Act.
87) Like that there is no prohibition for fixing the tenure of more than 2 years in the Act and 2 years mentioned under Section 47(3) is applicable only to the cases fallen under Section 47(1) or 47(2) of the Act, 1959. It also does not say that no trustee appointed or deemed to have been appointed under the scheme cannot hold office for more than 2 years. As there is no prohibition for the tenure of more than 2 years, any scheme containing any provision for the tenure of 3 years or 5 years cannot be held to be void or invalid.
V) Conclusion:-
88) In view of what all are narrated above I hope that one can safely arrive at a conclusion that the scheme temples are the scheme temples and if any provision in that is found inconsistent or repugnant or even of disturbing nature to the rulers it can be modified under section 64(5)(b) of the Tamil Nadu Hindu Religious Charitable Endowments Act, 1959 in accordance with the procedure prescribed under Section 64(5)(a) read with the Framing of the Scheme Rules, 1960. But, without adopting the said procedure orders are passed by the Government fixing the tenure of 2 years even for the trustees elected by the community temples governed by the scheme and appoint Executive Officer under Section 45 of the above Act, 1959 to interfere with the independent administration of the trustees inspite of the law laid down by the Hon’ble apex Court in Subramaniyaswamy case reported in (2014) 5 SCC 75.
I can never forget a name of the short story written by Leo Tolstoy (09.09.1828 to 20.11.1910) Russian author captioned ’God sees the truth but Waits’ first published in 1872. I like the name of the story more than a story because of its reality.
Yes God sees the Truth for the people who believe God but for the people who think and act that they are God themselves what can we say and do is a million dollar question to be answered.
