Heard Mr.N.Manokaran, learned counsel for the petitioner and Mr.T.Chandrasekaran, learned Special Government Pleader for the respondents.
2. As against the order of the second respondent dated 20.6.1995 passed in O.A.No.27 of 1993 which was under Section 64 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (for brevity, "the Act") settling a scheme, if anybody is aggrieved his right is only to file an appeal under Section 69(1) of the Act, which is as follows:
"Section:69. Appeal to the Commissioner.- (1) Any person aggrieved by any order passed by the Joint Commissioner or the Deputy Commissioner, as the case may be, under any of the foregoing sections of this chapter, may within sixty days from the date of the publication of the order or of the receipt thereof by him as the case may be, appeal to the Commissioner and the Commissioner may pass such order thereon as he thinks fit."
The said provision enables the affected party to file an appeal to the Commissioner, viz., the first respondent within sixty days.
3. In the present case, when the scheme was settled by the second respondent on 20.6.1995, the petitioner, who claims to be in control of the temple for three generations, instead of filing an appeal has approached the first respondent by filing an application under Section 69(2) of the Act. Section 69(2) of the Act is as follows:
"Section:69. Appeal to the Commissioner.-
(1) *** (2) Any order passed by the Joint Commissioner or the Deputy Commissioner, as the case may be, in respect of which no appeal has been preferred within the period specified in sub-section (1) may be revised by the Commissioner suo motu and the Commissioner may call for and examine the records of the proceedings as to satisfy himself as to the regularity of such proceedings or the correctness, legality or propriety of any decision or order passed by the Joint Commissioner or the Deputy Commissioner, as the case may be. Any such order passed by the Commissioner in respect of an order passed by the Joint Commissioner or the Deputy Commissioner, as the case may be, shall be deemed to have been passed by the Commissioner on an appeal preferred to him under sub-section (1)."
Under section 69(2) of the Act a suo motu power is available to the Commissioner in cases where he is satisfied that an earlier order has been passed which is irregular or improper. It is true that for exercise of such suo motu power there is no period of limitation contemplated, while the appeal by the aggrieved person has to be filed under Section 69(1) of the Act within sixty days.
4. It was taking the said application filed by the petitioner under Section 69(2) of the Act, the first respondent has passed the impugned order on 24.1.2008 directing the petitioner to file appeal under Section 69(1) of the Act against the scheme settled on 20.6.1995 passed in O.A.No.27 of 1993 with an application for condonation of delay. It was with the said endorsement the application filed by the petitioner under Section 69(2) of the Act came to be returned. In such a situation the petitioner has filed the present writ petition for a writ of mandamus against the first respondent to entertain the said application dated 8.1.2008 filed under Section 69(2) of the Act.
5. On the face of it, the present writ petition is not maintainable. The case of the petitioner is that when the petitioner and his family members have been in control of the temple for many generations, the applicants in O.A.No.27 of 1993 without even making the petitioner as a party have obtained an order under Section 64(1) of the Act by way of settled scheme by playing fraud on the petitioner by not making him as a party. The petitioner is certainly a person aggrieved as per Section 69(1) of the Act and such person aggrieved has a right of appeal which is an effective remedy given under the statutory provision. When such effective remedy is available, it is certainly not open to the petitioner to compel the first respondent to exercise suo motu powers under Section 69(2) of the Act, especially when the decree passed in O.A.No.27 of 1993 is in detail with reasons.
6. In the order dated 24.1.2008, while returning the application filed under Section 69(2) of the Act, the first respondent has only directed the petitioner to file an appeal and there is absolutely no grievance on the part of the petitioner at all, especially when the first respondent has even directed to petitioner to file an application to condone delay. If really the petitioner was not made as a party in the proceedings before the second respondent in O.A.No.27 of 1993 and the petitioner was not aware of such proceedings in which the scheme was settled as early as in the year 1995, it is for him to explain while filing appeal under Section 69(1) of the Act the reason for the delay and that he had not knowledge of the scheme settled, and it is certainly open to the first respondent to consider the same in proper perspective and decide the appeal on merits.
7. In such view of the matter, the writ petition fails and the same is dismissed, however with liberty to the petitioner to file an appeal against the order dated 20.6.1995 made in O.A.No.27 of 1993 under Section 69(1) of the Act with necessary application for condonation of delay. If such an appeal is filed with condone delay application within a period of one week from the date of receipt of a copy of this order, the first respondent shall receive the same and pass appropriate orders in respect of the condonation of delay and also decide the matter on merits, if he is convinced about the reasonableness of the delay in filing the appeal as it is enumerated above.
This writ petition is dismissed with the above direction. No costs. Consequently, M.P.No.1 of 2008 is closed.
sasi To:
1. The Special Commissioner & Commissioner Hindu Religious & Charitable Endowment Administration Department Nungambakkam High Road, Chennai-34.
2. The Deputy Commissioner Hindu Religious & Charitable Endowment Administration Department Myladuthurai, Villupuram District