T. Raja
1. A clamorous unrest erupted as a result of an awesome rift between a Madathipathi and a group of Disciples/Trustees of a Mutt called Thiru Alangadu Immudi Aghora Dharmasivachariya Ayira Vysya Mutt (in the course of this Judgment shortly referred to as "Vysya Mutt") over the administration of the Mutt and its properties, with the respective individuals emulously vituperating each other of certain mean-spirited misdoings, ultimately has led to filing of the present writ petitions, of which, three petitions viz., W.P. Nos.14032, 17160 and 23762 have been respectively filed by the Madithipathi,
(a) for the issuance of a writ of certiorari to call for the records from the office of the 2nd respondent, the Assistant Commissioner, The Hindu Religious and Charitable Endowments (HR &CE) Department (Administration), Erode, relating to the Notification, dated 21.04.2008, published in Tamil Daily ''Thina Thanthi", dated 26.04.2008, and subsequently modified by his Notification dated 29.04.2008, published in the same Newspaper on 01.05.2008, to conduct the election to the Board of Trustees of the Vysya Mutt, to be held on 22.06.2008, and to quash the same;
(b) for the issuance of a writ of mandamus to direct the first respondent, the Special Commissioner / Commissioner, HR & CE Admn. Department, Chennai-34, to hand over the entire administration of the Vysya Mutt, to the petitioner in the capacity as the Madathipathi and Trustee of the Mutt, forthwith; and
(c) for the issuance of a writ of certiorari to call for the records pursuant to the order in the proceedings of the first respondent, the Special Commissioner / Commissioner, HR & CE Admn. Department, bearing Na. Ka. No. 86545/04/S.2/1, dated 20.06.2007, appointing the 2nd respondent-the Assistant Commissioner, HR & CE Admn. Dept., Erode, as Election Officer to conduct the election to the office of Trustees in the Vysya Mutt, and to quash the same
while the other writ petition in W.P. No. 10031 of 2010 has been filed by one D.S. Muthusamy Chettiyar, claiming to be the Chairman of the Board of Trustees of the Vysya Mutt,
for the issuance a writ of certiorarified mandamus to call for the records of the first respondent/Commissioner of the HR & CE Board in regard to proceedings in Se.Mu.Na.Ka.No.8834/2010/S.2-1, dated 29.04.2010, quash the same and consequently, direct the respondents to permit the petitioner''s Committee of Trustees to manage the day-to-day affairs of the Mutt
2. Since the core issue regarding correctness or otherwise of the impugned proceedings of the HR & CE Board to conduct election to the Board of Trustees of the Mutt by the Board itself and to retain with it the management of the Mutt till devolving the administration to the de jure authority, and the allied issue relating to the rival claims of the Madathipathi and the Board of Trustees seeking to hand over the administration of the Mutt, require common consideration, all the writ petitions are heard together and given joint disposal by this Common Judgment.
3. While recording the submissions of the respective learned counsels, for the purpose of brevity in a matter which involves a complex factual backdrop, at the first instance, it is profitable to outline the relevant facts as projected by Mr. T.V. Ramanujun, learned Senior Counsel appearing for the petitioner/Madathipathi
The Vysya Mutt was founded by its first Madathipathi called Valkala Mounchikeswara Maharishi - a Brahmin by birth, also known as Thiru Alangadu Immudi Agora Dharma Sivachariar, at Thiru Alangadu situated in the present Thiruvelore District, about 30 miles away from Chennai about one thousand years ago. The successors of the founder-Madathipathi were Brahmins with disciples from Aiyra Vysya Community. It was the founder''s dictate in terms of the religious custom of the cult that a Minor South Indian Naishtiga Brammacharya boy only was to be selected and installed as Madathipathi for the Mutt whenever vacancy arises in the Peeth. All the Ayira Vysia are disciples of one and the same spiritual head viz., Sri Dharma Sivacharya, who settled down at Thirualangadu in Chittur District, and some centuries ago, on account of a sense of insecurity arose due to rivalry between two ideological Groups, he migrated and settled down at Palamalai Hills near Nerinjipet. The Mutt at Nerinjipettai was established as an off-shoot of the aforesaid Thiru Alangadu Mutt in 1815 A.D.
While so, on 03.05.1951, the then Madathipathi-Saptha Rishi Dharma Sivacharya Swamigal attained Siddhi, whereupon, the successor-Madathipathi could not be selected for installation and, in order to overcome the situation of keeping the seat of Madathipathi vacant, some of the disciples of the Mutt filed a petition before the Deputy Commissioner (Admn.) of the HR & CE Board for settlement of a Scheme for the Mutt. By Order dated, 30.09.1954, passed in O.A. No. 3514 of 1951, the authority settled a Scheme for the Mutt and such Scheme underwent a modification by the Commissioner of the HR & CE Appeal when the Appeal preferred before him in Appeal No. 3 of 1955 was decided on 31.08.1955. The said modified Scheme was challenged before the Subordinate Court at Erode in O.S. No. 155 of 1996 and, by its Judgment dated 24.12.1958, the Sub Court settled a New Scheme to be effective from 01.01.1959 and the same has been in force from the said date. In terms of clause-28 of the Scheme, which provided that the Madathipathi shall be selected by the Committee of Trustees elected by the disciples of the Mutt within six months from their assuming office, the petitioner in the above three writ petitions, being a south Indian Brahman and a Naishtiga Brammchari aged about 12 years at that time, was selected as Madathipathi/Head of the religious, secular and administrative units of the Mutt by the third Committee of Trustees elected subsequent to the Scheme concluded by the Sub Court. The Adoption Deed, dated 05.02.1977, executed by the parents of the boy/petitioner was accepted by the then Chairman of the Committee of Trustees by name A. Veerappan Chettiar.
3-B. So briefing the background in which the Scheme, dated 01.01.1959, came to be settled and the manner in which the petitioner came to be selected as Madathipathi, learned Senior Counsel highlighted the events that caused rift and bitter feelings between the Head of the Mutt and the Trustees by stating that the very same Committee of Trustees, which selected the petitioner as Madathipathi, by exerting threat and force and by making untenable allegations, drove away the petitioner in the year 1978 when he was just 13 years old. Also, they filed a suit in O.S. No. 696 of 1980 before the Sub court, Gobichettipalayam, slanderously Alleging misconduct against the Madathipathi and seeking to remove him from the office of Madathipathi. Though the said suit was ordered in their favour by order, dated 16.12.1995 with a finding that though the appointment of the petitioner was valid, he should be removed from the office for misconduct, on appeal before the Principal District Judge, Periyar District at Erode, the petitioner succeeded and by judgment, dated 25.04.1988, the decree of the lower court came to be set aside holding that the appointment of the petitioner was valid in law and such verdict of the lower appellate court was also upheld by the High Court vide Judgment, dated 23.06.1989, passed in Second Appeal No. 1054 of 1988. Learned Senior Counsel emphasised that the High Court, in its findings in the above Second Appeal, categorically held that ''it is manifest that the madathipathi is the superior head of the Mutt both spiritually And administratively''. Though the petitioner returned back to the Mutt after the judgment in his favour, he was never given a free hand to do the obligations connected to the affairs of the mutt since the rivals, under one pretext or other, by setting up persons as disciples, incessantly filed litigations before various courts and successfully prevented him from acting as Madathipathi. That is why, the petitioner had to approach the HR & CE Board for annulment of the Scheme itself or proper modification of the Scheme so as to confirm that the madathapathi is given his due right and privilege to act in that capacity.
3-C. In the above back-ground, it is submitted that, as on the date of initiating the impugned proceedings, the petitioner being the Madathipathi-cum- Trustee in terms of the confirmed position declared by this Court in the above referred second Appeal, at least, he should have been consulted about the election process, but, that was never done. Therefore, the self-initiated action running contrary to the scheme reflects the utter mala fides on the part of the authority; therefore, the entire election process is liable to be subverted. In other words, if the impugned Notification of the first respondent in appointing the 2nd respondent as the Election Officer to conduct election for the Board of Trustees is allowed, the petitioner would be put to irreparable loss and hardship for the simple reason that neither the 2nd respondent nor the Board of Trustees have any power, sanction or authority to conduct the elections except with the nod of the petitioner, who alone is the ultimate authority in the matters of identifying the disciples, eligibility of the members to participate in the process, etc.
3-D. As regards the impugned election notification, dated 20.06.2007, ie., the subject matter of W.P. No. 23762 of 2008, again, it is reiterated that the Board overstepped and exceeded its authority with reference to the affairs of the Mutt by issuing applications for enrolling new members. According to the learned Senior Counsel, even as per the Notification, the authority was authorised only to deal with certain basic aspects viz., filing of nomination, scrutiny and return of nomination and publication of final list of candidates and never, there was any power conferred upon the authority to take on record new members/disciples on the roll. Therefore, the highhanded action on the part of the Board would suggest otherwise and further, it also leads to an inference of collision of the Board with the favourites; therefore, it is absolutely necessary that this Court quashes the entire election proceedings in terms of the settled position as concluded in the Second Appeal regarding the supreme authority of the Madathipathi over religious, secular and administrative spheres.
3-E. As regards the prayer in Writ Petition No. 17160 of 2008 for handing over the administration of the Mutt to the petitioner/Madathipathi, learned Senior Counsel, by much reiterating the proposition that a Madathipathi presiding over the affairs of a Mutt/Institutional Sanctum and holding the dual office of religious and secular head of the particular cult or religious folk, is the absolute manager of the secular properties of the Institution of the Mutt and therefore, such Madithapathi is also a Trustee within the definition under Clause 22 of Section 6 of the Act, would argue that, as on to-day, after the term of earlier elected trustees having come to an end on 13.06.2005, the petitioner/Madathipathi alone is the Head, Administrator and Manager of the Mutt and its properties; hence, be allowing the said petition, the authorities may be directed to hand over the entire administration of the Vysya Mutt to the petitioner. Consequently, he prayed to straight away dismiss the claim of the rival petitioner in W.P. No. 10031 of 2010 for permitting the petitioner therein/D.S.Muthusamy Chettiar and the Committee headed by him to manage the day-to-day affairs of the Mutt.
4. Per contra, Mr. S. Kandaswamy, learned counsel appearing for the HR & CE Board in the petitions, states that the endeavour of the petitioner/Madathipathi in filing O.A. No. 1 of 1999 before the Commissioner of HR & CE Board for cancellation of the scheme (framed by the Sub Court, Erode, in O.S. No. 155 of 1956) by which only he came to be selected as Madathipathi to be the religious and spiritual head of the disciples and of the endowments and head of the secular affairs of the Mutt, would only reflect his indifferent approach, and comments that such preposterous attempt is nothing but harnessing the horse after the wagon. Likewise, criticising much about the conduct of the petitioner/Madathipathi in bartering cash for crown ie., striking a deal with the Committee of Trustees to settle him the amount of Rs. 11,57,000/- in four Instalments for relinquishing the Office of Madathipathi, he would say that, in pursuance of such deal between the Head of the Mutt and the Committee, a Resolution dated 14.03.1999 came to be passed and followed by the same, a Joint Memo, dated 26.04.1999, in O.A. No. 1 of 1999 was also moved before the HR & CE Department, however, the Commissioner, in the overall interest of the Mutt, ultimately dismissed such Joint Memo by his order dated 05.05.1999. Had this phenomenon occurred and surfaced while the Second Appeal was given disposal, definitely, the Madathipathi would have been ousted even at the hands of this Court itself. By referring to the Scheme, it is further stated that the Madathipathi cannot individually operate the Bank Accounts nor shall represent the Mutt in Civil, Criminal and revenue matters concerning the Mutt before any court or forum. As in the case of the Madathipathi, equally, there lies an allegation against the rivals in striking at a deal with the Madathipathi for relinquishment of the seat and further, they are also not free from the accusation of self-interested activities. Therefore, in terms of what is provided u/s 118 (2) (b) of the Act, by virtue of which the provisions of the Act would prevail over the Scheme when it runs inconsistent with the provisions as in the given situation, the Board took the decision to conduct the election in a fair manner so that the disputes and affairs are settled in the right manner. Thus, there is no scope for interference with the impugned proceedings unjustly challenged before this Court with mala fide intention by persons driven by self-motivation.
5. M/s. V. Shanmugam and V. Subramanian, learned counsels appearing for the respondents/committee members and Mr. V. Bharathidasan, learned counsel appearing for the Chairman of the Mutt/petitioner in W.P. No. 10031 of 2010 would, in their fierce criticism on the conduct of the petitioner-Madathiapthi, submit that the entire community and the well-wishers of the Mutt have lost their faith in the Head of the Mutt as he never interested in the welfare and development of the Mutt but concentrated only on the worldly gains. According to them, from the series of litigations launched at his hands against the committee of the Mutt, it could be seen that he would always concentrate on temporal affairs and usually seek for repayment of the money alleged to have been spent by him and complain non-payment. In that background, one can easily study his intention in seeking modification or annulment of scheme itself, by virtue of which alone he came to be selected as Madathipathi, as the scheme, while dealing with the income of the mutt and disbursal, in vivid and unambiguous terms, provides in clause 13 that no person other than the Executive Officer or the Chairman as the case may be shall be entitled to receive the income of the Mutt or make any disbursement thereof. Looking at any perspective, no justification whatsoever can be found in the claim of the petitioner/Madathipathi for stalling the election process and seeking instant handing over of the administration of the Mutt, therefore, it is prayed that the writ petitions filed by the Madathipathi may be dismissed with costs. Consequently, Mr. Bharathidasan, learned counsel appearing for the Chairman of the Committee/petitioner in W.P. No. 10031 of 2010, pleaded to allow the committee to manage the affairs of the mutt even as a care-taking unit until the issue is settled through the outcome of the election process.
6. I have given my thoughtful consideration to the rival arguments advanced on either side in regard to the complex factual scenario and vying claims for management and administration of the Mutt by the respective individuals. The main and core issues based on which, this court has to deliberate upon for arriving at a conclusion are
(a) Whether, in the given facts and circumstances peculiar to this case, the HR & CE Board is right in initiating the election process through the impugned proceedings to elect the Board of Trustees to the Mutt without even consulting the supreme Head of the Mutt, the Madathipathi, regarding the disciples eligible to participate in the election and further, in retaining the management of the Mutt?,
(b) Whether the Madathipathi is right in assuming that he is simultaneously Madathiapthi as well as Trustee in terms of Section 6 (22) of the Act when the Scheme provides otherwise, and justified in stating that the trustees cannot be elected and no election can be conducted on the ground that after his appointment, no trustees can hold the office?;
(c) Whether the Madathipathi is correct in emphasising his rights and claim in the light of the Scheme when he himself, admittedly, by moving an Application sought for modification/cancellation of the Scheme based on which he came into existence as Madathipathi and such application is pending disposal at the hands of the HR & CE Board? And
(d) whether it would be just and proper at this point of time to entrust or hand over the management of the Mutt either to the Madathipathi or the committee of Trustees headed by the Chairman?
7. At the first instance, the scope and objectives behind the Scheme Settled should be graphically presented to rightly understand and appreciate the rival claims. After the demise of Dharma Sivacharya Swami on 03.05.1951, an exigency had arisen as none was selected and installed as the successor Madathipathi. Therefore, some of the disciples of the Vysya Mutt approached the HR & CE Admn. Department for settlement of a scheme, whereupon, the Scheme, dated 30.05.1954, came to be evolved by the Deputy Commissioner of the Department in O.A. No. 3514 of 1951. However, such scheme was sought to be modified by way of Appeal No. 3 of 1955 and, after conducting enquiry thereon, the appellate authority viz., the Commissioner, settled a modified scheme, dated 31.08.1955. Again, the said Scheme came to be challenged before the Sub Court, Erode, in O.S. No. 155 of 1956. At this juncture, it must be carefully taken note of that, amongst the various reason cited for modification, few of them was that the Scheme settled by the appellate authority/Commissioner did not provide for the selection of a Madathipathi and that unfettered powers were conferred upon the Executive Officer and thereby the activities of the Madathipathi were to be controlled by the authority. The learned Subordinate Judge, while identifying the characteristic of the Mutt for which the Scheme is sought to be finalised, adeptly delved into the origin of the Mutts and concluded that the mutt in question is neither of the kind of Sankara nor it had the semblance to Sudra with the following specific findings on the peculiarity of the Mutt and the position of Madithapathi compared to other Mutts:
The custom and usage of the suit Mutt and its origin are peculiar, so that the rules of the constitution or the usage and customs of those institutions and the rights and duties pertaining to the Mohunts or the Pandara Sannadhis of those institution are not obtainable in the suit Mutt".
That the Madathipathi, who is selected by the general body of the disciples, is not empowered to nominate his own successor. Thus, the Dharmasivachariar Mutt at Nerinjipet follows a peculiar custom and usage unlike the other Brahmin Mutts or the Sudras'' Mutts functioning in the different parts of the madras state.
Thus, the Sub Court which framed the Scheme for the Vysya Mutt had categorically found its peculiar nature and characteristic and only, in that context, settled the Scheme which, admittedly, was never questioned by any of the members of the community concerned save the petitioner/Madathipathi in the year 1999 by way of moving an application in O.A. No. 1 of 1999 before the HR & CE Board. From the above aspect dealt with by the Sub Court, it must be borne in mind that, while dealing with this case, a generalised concept with reference to various spectrum of mutts and the concepts of Madathipathi prevalent there-at cannot be applied to the Mutt in the instant case as it stands distinctly from other s
7-A. Proceeding one step further, the Scheme Court also ventured into the question of ordinary rights and duties of the Madathipathi with reference to the conflicting view arose even at that point of time - as to whether the head of a Mutt is a trustee or a corporation sole. This Court desires to highlight much upon the same for the reason that the Scheme settled should not be read here as such but purely in the background and context in which it was ultimately came to be settled, as otherwise, each group will drag the points in their favour to the disadvantage of the other and finally, the adjudicator would be the victim of out-of-context quotes. Therefore, in regard to the above question, the relevant portion of conclusion reached by the Scheme Court is extracted below:-
27..But in 48 Indian Appeals 302 the privey (sic) Council held that he is not a trustee with regard to the - endowment, save as to any specific property proved to have been vested in him for a specific and definite object. Their Lordships say "called by whatever name, he is only the manger and custodian of the idol or the institution. In almost every case he is given the right to a part of the usufruct, the mode of enjoyment and the amount of the usufruct depending again on usage and custom. In no case the property conveyed to or of the obligation and duties resting on him, he is answerable as a trustee in the general sense for maladministration. Unlike the manager of a religious or charitable institution, the head of Math has ample discretion in the application of the funds of the mutt but always subject to certain obligations and duties governed by the custom and usage.
As regards the question with whom the management of endowment lies and the obligation rests to answer the disciplinary authority, the Scheme Court specified thus,
30. Having assumed powers of the trustees, they must also take the burden of responsibilities and they must be responsible to some authorities for it proper discharge of their functions. No doubt the trustees are responsible to the Madathipathi, but for better provisions to safe-guard interest of the Mutt, the trustees with whom the management of the Endowment has been given shall be made subject to disciplinary authority prescribed by the Act
Ultimately, the Scheme Court, by modifying the scheme impugned before it, settled the new Scheme by stating that "a new scheme has to be settled consistently with the right of the madathipathi and the general body of the disciples which is peculiar to this Mutt and to the other relevant provisions of the Endowments Act under Sections 58 (3)
7-B. A studious and deliberate reading of the findings of the Scheme Court while framing the new scheme would make it clear that it framed the scheme having regard to the exigency that a Madathipathi was yet to be selected and after his selection, the functional ambit of both sides viz., Madathipathi and the Committee of Trustees, should be consistent with each other to avoid any fraction or clash between them. It is further clear that the Madathipathi would mainly concentrate on his spiritual obligations pertaining to rites and rituals, of course, with watch and chary observation over the activities of the Committee of Trustees in the matter of management of the properties, income and expenditure etc., while the Committee of Trustees would assist the Madathipathi, who would be much engaged in the spiritual affairs, in maintaining and managing the endowments and accounts. Each side would play their respective roles diligently for the betterment of the Mutt and, in that course, no one would transgress their limits and bounds unlike the commoners competing in temporal affairs to somehow devour the wealth, for, Mutt is an Institution where self-interest and self-gaining hardly has any role to play.
8. In the instant cases, the Madathipathi, who had to pass restless days in his Office from the inception due to criticisms and allegations of misdoings, now seeks this Court to clarify his status as the Head of the Mutt with unfettered authority not only over the spiritual affairs but also monetary aspects of the mutt, while the rivals much comment that once he had struck the deal for some fourteen lakhs of rupees for relinquishing the office of the Madathipathi, he cannot be allowed to have any authority at a crucial time of election to the Board of Trustees. Though, it is stated by way of refutation by the learned Senior Counsel for the petitioner that only, due to the pressure and threat exerted, the Madathipathi had to sign the joint memo for settlement over relinquishment of office in lieu of cash, such refutation is controverted by saying that, in that event, at least before the authority concerned, the Madathipathi could have very well projected his case that he was intimidated and threatened. Further, till the adjudication process on the joint memo for settlement of money was ongoing, the Madathipathi never opened his mouth expecting settlement of money as per the terms reached and once it had become clear that the deal would not work out due to the dismissal of the joint memo, he changed his colour and started alleging exertion of threat and intimidation against the committee of trustees. It is stated that the Madathipathi, a Brahmin and who is expected to be pure, simple and humble, if in fact led an ascetic life setting guidance to the disciples, the entire community would have come to the aid and assistance of the Madathipathi which is a common outcome in the case of unjustly dealing with a righteous religious man. It is further stated that, obsessed with the passion for temporal gains and the desire to lead a life of pomp and extravagance, he is vainly fighting to have monopoly over the Mutt with the help of just a few supporters loyal to him. That is why, he is not consistent before the Court with regard to the Scheme itself, for, before this Court, he highlights the said scheme to accept his case while the admitted fact remains that he himself has approached the HR & CE Board for modification or even cancellation of the Scheme itself so that he is given the overall supremacy in the matters including the monetary affairs.
9. Though this court does not want to go into the allegations and the context in which it is made, from the records, it is apparent that the petitioner/Madathipathi moved the application for modification or cancellation of the Scheme and such application is pending disposal with the HR & CE Board. As already pointed out by this Court, the claim of the Madathipathi that he has absolute power over the temporal affairs of the Mutt to the complete exclusion of the committee of trustees can never be accepted in the light of the scheme decree itself. In order to judge the acceptability or otherwise of the claim of the petitioner/Madathipathi regarding the overall control, the relevant clauses of the Scheme have to be looked into.
10. At the first instance, it would be relevant to deal with Clauses-13, 14 & 16 of the Scheme which read thus:
13. Where the Madathipathi thinks that an Executive Officer is necessary to assist in the administration of the Mutt, he shall appoint an Executive Officer on the advice of the committee of the trustees and the Executive Officer so appointed, or in the case of no Executive Officer, the Chairman of the Committee of the Trustees, shall be in charge of the day-to-day administration of the secular affairs of the and the endowments connected with the Mutt, receive all moneys due to the Mutt, make disbursements on behalf of the Mutt and be in custody of the jewels, movables, cash, stores, accounts and records belonging to the Mutt. The executive officer or the chairman, as the case may be, shall maintain true and proper accounts supported by regular vouchers of all receipts and disbursement. No person other than the Executive Officer or the Chairman as the case may be, shall be entitled to receive the income of the Mutt or make any disbursements thereof.
14. The funds of the Mutt shall be deposited in any of the approved banks in the name of the Mutt and the bank account shall be operated upon by the Executive Officer or the Chairman as the case may be, from time to time as the exigencies of the administration may require. The Executive Officer or the chairman as the case may be shall not at any time keep more than a sum of Rs. 100/- of the funds belonging to the Mutt and all sums over and above Rs. 100/- shall without delay, be deposited in the bank account. This limit may however be varied with the approval of the Madathipathi or Chairman.
16. The Executive Officer or the chairman as the case may be, shall after ascertaining from the Madathipathi necessary particulars regarding the conduct of various affairs of the Mutt, place at the disposal of the Madathipathi, in every month the things and articles necessary to carry on the spiritual functions of the Mutt and the performance of the periodical festivals and ceremonies and other customary religious services and the distribution of sadavarthi etc., in accordance with a Dhittam or scale of expenditure settled by the Deputy Commissioner in consultation with the Madadhipathi, the Chairman and the Committee of trustees; taking into consideration the customs and usages of the Mutt, the financial position and other relevant factors
Thus, as per Clause-13 dealing with "administration", it is the Executive Officer or the Chairman, who alone are entitled to receive the income of the mutt and to make disbursement thereof while acting in charge of the day-to-day administration of the secular affairs of the mutt and its endowment. That is why as already stated, the Scheme Court made it clear that, in the case of maladministration of the assets or money, these authorities are answerable to the disciplinary authority.
As regards Clause-14 dealing with funds, it is settled that the limit of deposit shall be concluded after the approval by the Madathipathi.
In terms of Clause-16 dealing with the expenditure for festivals and ceremonies, the issue shall be settled by the HR & CE in consultation not only with the Madathipathi but also with the Chairman and the committee of trustees.
11. From the above, this Court could without any difficulty note that the Madathipathi is consulted, assisted and advised as the Head of the Institution, but at the same time, some areas involving accounts and expenditure in the track of administration are entrusted solely with the Chairman or Executive Officer with a view to simplify the burden of the Madathipathi to concentrate into the spiritual affairs. However, in some monetary affairs, the Madathipathi is consulted because of the reason that he alone could examine and assess the amount to be spent for the rites and rituals involved in regard to the festival or ceremony. Therefore, based on one or two aspects, the Madathipathi, even as per the Scheme, cannot seek to take over the entire realm of secular administration and similarly, the Board of Trustees cannot also act without being superintended and monitored by the Madathipathi, the Head of the Mutt.
12. But, now, a situation has arisen where-from it could be seen that despite the presence of the Madathipathi, a vacuum is sensed alleging misdoings and worldly clinging on his part. In between the feud between the trustees/disciples and the Head of the Mutt, the interests of the Mutt are at stake. Though it is said that this is an illustrious case where the Head of Mutt was even deprived of his basic requirements to act in that capacity, such complaint does not weigh much in the judicial scales for the reason, when the petitioner had gone to the extent of seeking cancellation of the scheme itself, he could have acted more smartly by making written correspondence to the committee regarding his needs and, in the event of denial or non-response, he could have very well addressed the Board, thereby, the allegations against the committee could have been substantiated. Again, unfortunately, that is not the case.
13. Further, from a reading of clause-15 which reads thus,
The Mutt shall be represented by the Executive Officer or the Chairman as the case may be, in all Civil Criminal and Revenue Proceedings; but before filing a suit or defending any proceedings in court, the Executive Officer or the Chairman as the case may be, shall report to and obtain the approval of the committee of the trustees; in case, however, of emergency, he may act on his own authority, but he shall as son as possible report his action to the Madathipathi.", it is understood that all civil, criminal and revenue proceedings have to be pursued only by representation through Chairman or the Executive Officer, however, in the event of the said persons acting in time of emergency without the approval of committee of trustees, they are bound to report their action as soon as possible to the Madathipathi. Ironically, now, the Madathipathi himself is running ahead in pursuing the legal battle against the trustees of his own mutt and almost a situation of pre-scheme period has come into existence despite the presence of a scheme and existence of a Madathipathi
14. Pausing a while here, the operative portion of the earlier order, dated 16.04.2009, passed by this Court in M.P. Nos.2, 5 and 6 of 2008 in W.P. No. 14032 of 2008 is relevant to be quoted below:
8. As per the notification of the second respondent, the election has to be conducted for the Committee of Trustees. At this point of time, the main issue whether the Commissioner can direct the Assistant Commissioner to conduct election or not cannot be decided in the petition for stay and the same has to be decided only at the time of final disposal. Prima facie, I am of the considered opinion that since already in the year 1988 and 1997, the Commissioner (HR 7 CE) has directed the Assistant Commissioner to conduct election, the Assistant Commissioner can proceed with conducting election now. Now, permitting the Assistant Commissioner (HR & CE) to conduct election would not in any way affect the Madathipathy. As it is, the question of the petitioner continuing as Madathipathy or not is not the subject matter in this writ petition. Further more, the election process already commenced and the petitioner is not left with any other remedy. The petitioner can very well challenge the election at a future date if according to him, it has not been conducted properly or the names of the disciples have not been properly included, etc. For that, the petitioner cannot stall the election for the Committee of Trustee.
Thus, this Court has already given its nod for going ahead with the election process, however, interestingly, the petitioner/madathipathi has not challenged the said order. Further, this Court very clearly outlined that the continuance of the petitioner as Madathipathi is not questioned now before this Court and that the petitioner cannot have any say, in the given situation, to stall the election process with a clear observation that the petitioner can very well challenge the outcome, if he feels aggrieved in any way.
15. Despite that, the grievance of the petitioner is that he alone can decide the discipleship of a person and no one has the authority to take decision in that matter. Of course, in the course of normal and usual running of the mutt, such understanding can never be attempted to be interpreted otherwise. But, the so-called trustees and some of the aspirants for the office of the trusteeship emphatically allege odd against the Madathipathi; in such a situation, to make his own position clear and to further re-echo his supremacy, the petitioner has approached none else than the HR & CE Board for suitably modifying or even cancelling the Scheme itself. Therefore, it is quite apparent that, in the utmost crucial matters, he reposes his confidence in the HR & CE Board for a decision to be arrived at. That being so, the very same third umpire/HR & CE Board, who alone in the present scenario has the competence and ability to handle the situation and who enjoys more
powers u/s 118 (2) (b) of the Act which provides that a scheme settled by the Department or any court, if found to be inconsistent with the provisions of the Act, the Act shall prevail over the Scheme, in the best interests of the Mutt has commenced the task of the Election Process for electing the Board of trustees, without whom, it is quite impossible to run the Mutt as per the Scheme. If the petitioner had, out of his concern for the mutt, apprised the Board the correct perspective of identifying of the right disciple and the Board had unjustly neglected such appraisal, he is right in alleging excessiveness or high-handedness against the Board. Now, there is a clear definition available in the Scheme itself for the term ''Disciple'' to mean and include the adult male members of the Ayira Vysia Community above the age of 21 years among the sub-sects of nagarathu Chettiars, Beri Chettiars, Kasukkara Chettiars, Soiler Chitttiars and Manjaputhurars, residing in the various districts of the madras State and who follow the tenets and doctrines of the Dharma Sivachariar Mutt of Nerinjeipet. Further, it is brought to the notice of this Court by the HR & CE Department that, by way of judgment and decree passed in O.S. No. 144 of 1964 on the file of the Sub Judge, Erode, as regards the disciples, the scheme framed in O.S. No. 155 of 1956 was modified so that each disciple has the power to vote for the election of all the representatives irrespective of their locality. As an illustration, it is further pointed out that as regards the Kandasamy Temple administered by Beri Chetti community in Chennai City, for electing the trustees as per the provisions of the Scheme settled by the High Court, an Election Officer was appointed by the Commissioner of the HR & CE Board and such action of the Commissioner was also approved by this Court in M.P. No. 2 of 2008 in W.P. No. 16756 of 2008 vide order dated 05.09.2008.
16. Apart from the above, Section 60 of the HR & CE Act permits appointment of the Assistant Commissioner to take proper steps for proper custody and protection of the endowment of the mutt in the event of
a) vacancy occurring the office of the trustee of a mutt or specific endowment attach to a mutt; and
b) a dispute in respect of a person who is entitled to act as guardian.
Admittedly, in this case, a dispute incessantly continues till today as pointed out above and there being one neutral authority/HR & CE Board to sort out the issues and set the things in order by conducting a fair election in the interest of the Mutt, interference by this Court by referring to trivial technicalities with the impugned proceedings challenged by the Madathipathi is hardly warranted. It follows that neither the plea of the Madathipathi nor that of the Chairman, petitioner in W.P. No. 10031 of 2010, for handing over the management of the Mutt can be considered now as the same has been settled by the outcome of the election as ordered by this Court vide order dated 16.04.2009 in M.P. Nos.2, 5 and 6 of 2008 in W.P. No. 14032 of 2008. Even though liberty was given to the Madathipathi to challenge the election at a future date, if according to him, the election was not properly conducted or the names of the disciples have not been properly included, the fact remains that the Madathipathi has not challenged the election, resultantly, more than two and half years have gone by, therefore, the elected Board of Trustees can continue to complete its tenure. On the other hand ,if elections were not held by now, before going for fresh Election, the outgoing Board shall act in the letter and spirit of clause-24 of the Scheme by allowing the Madathipathi to decide whether a particular person of that community is a disciple or not. This exercise shall be done preferably within four months before issuing the election notification. This means that the Madathipathi should complete the exercise in deciding the identity of the disciple and thereafter, the Trustees shall maintain a final list of the disciples of the Mutt. With the above direction, W.P. No. 23762 of 2008 is disposed of, because the Madathipathi will decide the identification of disciple and will prepare a list of voters, on this basis, the Assistant Commissioner will proceed to hold the elections for the Board of Trustees .In view of the above, the connected other Writ Petitions are dismissed and the Miscellaneous Petitions are closed.
The impleadment of Mr. R. Muthukumarasamy as a respondent to the writ petitions is recalled since he is not eligible to be the Chairman in terms of the Scheme which provides that no one shall be elected to the committee of trustees who is below 25 years of age and above 70 years of age, whereas, the said individual has admittedly crossed 70 years of age at the time of moving the Application before this Court.
