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Case Number

S.A No. 658 of 1996

Attorney(S)

Mrs. N. Krishnaveni for Appellants
Mr. P. Krishnamoorthy, Government. Pleader for Respondent Nos. 1 to 3.
Mr. S. Jothiraman for Respondent No. 4.

Judges

AR. Lakshmanan, J.

Acts

SECTION 26 PONDICHERRY HINDU RELIGIOUS INSTITUTIONS ACT 1972
PONDICHERRY HINDU RELIGIOUS INSTITUTIONS ACT 1972
Section 26 of the Hindu Religious Institution Act, 1972,
SECTION 9 CIVIL PROCEDURE CODE
Section 80, C.P.C

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Smart Summary

Structured Summary of the Court's Opinion

Factual and Procedural Background

The Second Appeal arises from a suit filed by the appellants (plaintiffs) challenging an order dated 5.3.1993 by which the third respondent appointed the fourth respondent as Special Officer to take over administration of certain temples (Shri Muthuvinayagar, Sri Subramania Swamy, Sri Nagamuthu Mariamman Devasthanam, Saram, Pondicherry). The appellants alleged they had been appointed as members of the Board of Trustees by Government order (G.O. Ms. No. 67.CHRI/TI/87 dated 28.8.1987, notified 5.11.1987), had continued in office beyond the initial three-year term, and claimed an oral assurance from the third respondent that they would be allowed to continue. The appellants sought (i) a declaration that they were entitled to continue as members of the Board of Trustees, (ii) a declaration that the order appointing the fourth respondent as Special Officer was void ab initio and inoperative, and (iii) a permanent injunction restraining interference with management and administration of the temples.

The trial court (I Additional District Munsif, Pondicherry) held the suit was maintainable and that Section 26 of the Pondicherry Hindu Religious Institutions Act, 1972 did not apply. The defendants (respondents) appealed to the Principal District Judge in A.S. No. 131/94. The Principal District Judge reversed the trial court’s decision, holding Section 26 was mandatory and that no previous sanction of the Government had been obtained, rendering the suit not maintainable. The appellants then filed this Second Appeal, which was admitted for consideration of specified substantial questions of law.

Legal Issues Presented

When the plaintiffs had brought the action in their individual capacity for a declaration that the order passed by the 3rd respondent appointing the 4th respondent as Special Officer, is the learned Principal District Judge right in holding that the plaintiffs had filed the suit in the capacity as members of the Board of Trustees and they ought to have taken the permission of the Government before proceeding to initiate the proceedings?
When the plaintiffs had prayed that a declaration be made entitling them to continue as members of the Board of Trustees, is the learned Principal District Judge right in construing the same to mean that the suit was filed as members of the Board of trustees and the same was hit by Sec. 26 of the Pondicherry Hindu Religious Institutions Act, 1972?

Arguments of the Parties

Appellants' Arguments

The appellants pleaded they had been appointed as members of the Board of Trustees under the Government Order and had continued to function; their suit was filed in their individual capacity to obtain a declaration that they were entitled to continue in that capacity.
They sought a declaration that the order dated 5.3.1993 appointing the fourth respondent as Special Officer was void ab initio and inoperative and an injunction to prevent interference with temple administration.
The appellants contended (as noted in the appeal) that they need not obtain prior permission from the Government because the suit was for a declaration against an impugned order and brought by individuals asserting their personal entitlement rather than by the Board itself.

Respondents' / Defendants' Arguments

A preliminary objection asserted the suit was not maintainable: (a) the dispute did not fall under Section 9 of the Civil Procedure Code and (b) pre-suit notice under Section 80 CPC was not issued.
The defendants contended the suit was barred by Section 26 of the Pondicherry Hindu Religious Institutions Act, 1972 because the plaintiffs were claiming to be the Board of Trustees and, therefore, the plaintiffs (as the Board) could not institute proceedings without previous sanction of the Government.
It was argued that the plaintiffs had no independent right to continue in office beyond the prescribed term under the Act and Rules; under Section 4 the appointing authority (Government/third respondent) had power to permit continuation, appoint a new Board, or appoint a Special Officer, and hence the Court had no jurisdiction to decide the validity of the G.O. without prior sanction.
On appeal (A.S. No. 131/94) respondents reiterated that Section 26 bars legal proceedings by any Board without prior Government sanction and that plaintiffs had claimed Board status, so Section 26 applied.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court proceeded by examining the statutory framework in the Pondicherry Hindu Religious Institutions Act, 1972—particularly the definitions and Section 4 (appointment and tenure of Board of Trustees) and Section 26 (prohibition on suits or other legal proceedings by any Board without previous sanction of the Government).

Key analytical steps the court took, as reflected in the text:

The court noted that Section 4 contemplates appointment of a Board by Government notification, sets out tenure (three years) and contemplates the Government’s power to appoint a Special Officer pending constitution of a Board.
It observed that once the appointing authority had invoked Section 4(1) to constitute a Board of Trustees, Section 26 becomes applicable “automatically” because Section 26 expressly restricts legal proceedings by any Board without previous Government sanction.
The court examined the reliefs claimed in the plaint and concluded they included a prayer for a declaration that the plaintiffs were entitled to continue in the capacity of members of the Board of Trustees. That relief, the court held, amounted to the plaintiffs asserting Board status in respect of the litigation.
The court reviewed the trial court’s conclusion (that the plaintiffs sued in their individual capacity) and disagreed. It found that the plaintiffs had specifically pleaded that they were continuing to work as Trustees and sought a declaration of entitlement to continue, so the litigation was not purely an individual claim but one in which the plaintiffs had assumed the role/status of the Board of Trustees for the purposes of the suit.
On that basis, the court characterized Section 26 as mandatory and held that prior Government sanction was a condition precedent to maintain such a suit. Because the appellants had not obtained any previous permission or sanction from the Government, the suit was not maintainable under Section 26.
The court expressly rejected the appellants’ contention that the suit merely sought a declaration that the appointment order of 5.3.1993 was void ab initio; the court found the plaint also sought the additional relief of declaring the plaintiffs’ entitlement to continue as Board members, which drew the case within Section 26.
Having reached that conclusion, the court dismissed the Second Appeal on the ground that the suit was not maintainable for want of prior sanction under Section 26; it also noted there would be no order as to costs and that dismissal would not preclude the appellants from instituting a fresh suit in accordance with the Act.

Holding and Implications

HOLDING: The Second Appeal is dismissed. The court held that the suit as framed was not maintainable because it was hit by Section 26 of the Pondicherry Hindu Religious Institutions Act, 1972 for want of previous Government sanction.

Implications:

The direct effect is that the suit challenging the appointment of the Special Officer and seeking a declaration of entitlement to continue as Board members cannot proceed because no prior sanction from the Government was obtained (a condition precedent under Section 26).
The court stated there would be no order as to costs.
The dismissal does not bar the appellants from filing a fresh suit, provided it is launched in accordance with the procedural requirements of the Pondicherry Hindu Religious Institutions Act, 1972 (i.e., after complying with Section 26 where applicable).
The opinion did not claim to set any new broader legal precedent beyond applying the mandatory effect of Section 26 to the facts of this case as described.

Case identifiers and procedural references (as they appear in the opinion): Second Appeal arising from A.S. No. 131/94 (Principal District Judge), judgment and decree dated 29.11.1995 reversing O.S. No. 798/93 (I Additional District Munsif) dated 18.7.1994. Parties: appellants (plaintiffs), respondent No.1 Union of India, respondent Nos.2 and 3 authorities of the Hindu Religious Institutions, respondent No.4 the Special Officer.

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Subramanian And 2 Others v. Union Of India, Rep. By Chief Secretary, Govt. Of Union Territory Of Pondicherry. 2. Secretary To Government, Hindu Religious Institutions, Govt, Of Union Territory Of Pondicherry. 3. The Commissioner, Hindu Religious Institutions, Govt. Of Union Territory Of Pondicherry. 4. Danasegar.

This Second Appeal is admitted and the following substantial questions of law arose for consideration:—

“a) When the plaintiffs had brought the action in their individual capacity for a declaration that the order passed by the 3rd respondent appointing the 4th respondent as Special Officer, is the learned Principal District Judge right in holding that the plaintiffs had filed the suit in the capacity as members of the Board of Trustees and they ought to have taken the permission of the Government before proceeding to initiate the proceedings?

b) When the plaintiffs had prayed that a declaration be made entitling them to continue as members of the Board of Trustees, is the learned Principal District Judge right in construing the same to mean that the suit was filed as members of the Board of trustees and the same was hit by Sec. 26 of the Pondicherry Hindu Religious Institutions Act, 1972?”

2. By consent of both the sides, the main Second Appeal itself is taken up for final hearing.

3. Heard Mrs. N. Krishnaveni, learned counsel for the appellants Mr. P. Krishnamoorthy, learned Government Pleader, appearing for the respondent Nos. 1 to 3 and Mr. S. Jothiraman, learned Counsel for the fourth respondent.

4. The above Second Appeal is directed against the judgment and decree dated 29.11.1995 made in A.S No. 131/94 on the file of the Principal District Judge, Pondicherry, reversing the judgment and decree dated 18.7.1994 made in O.S No. 798/93 on the file of the I Additional District Munsif, Pondicherry. The plaintiffs are the appellants in this Second Appeal. The respondent No. 1 is the Union of India and the Respondent Nos. 2 and 3 are the authorities of the Hindu Religious Institutions and the respondent No. 4 is the Special Officer appointed in the place of the appellants.

5. The appellants filed the suit for the following reliefs:—

“i) to declare that they are entitled to continue in the capacity of the members of the Board of Trustees of Shri Muthuvinayagar, Sri Subramania Samy, Sri Nagamuthu Mariamman Devasthanam of Saram, Pondicherry;

ii) to declare that the order said to have been passed by defendant No. 3 on behalf of 1st and 2nd defendants dated 5.3.1993 appointing fourth defendantas Special Officer of the abovesaid temples is void abinitio and inoperative;

iii) to grant permanent injunction restraining the defendants from, in any way, interfering with the management and administration of the above temples, together with costs”.

6. The appellants averred that they along with one Annamalai Pillai were appointed as members of the Board of Trustees of the temples in question, by virtue of G.O Ms. No. 67.CHRI/TI/87 dated 28th August 1987, which was notified in the Gazette No. 44, dated 5.11.1987 They were functioning in such capacity. When Annamalai Pillai, who was the nominated as President of the Board, resigned from the said post, the first plaintiff, who was the Vice-President, was given charge of the post of President as per order dated 11.12.1987 of the third respondent. The plaintiffs Nos. 2 to 4 were respectively, Secretary, Treasurer and Member of the Board of Trustees. The tenure of office ended on 19.8.1990 However, they were allowed to hold the office for a further period of three years. According to the appellants, the third respondent gave an oral assurance that they would be allowed to continue in office. However, the third respondent, contrary to the oral promise, issued an order on 5.3.1993 that the fourth respondent/fourth defendant was appointed as Special Officer to take over from them in view of the expiry of the tenure of the Board on 19.8.1990 It is contended that the respondents are barred from issuing that order. When the defendant Nos. 1 to 3 seek to disturb the possession, the appellants filed the suit in the lower court.

7. The third defendant filed a written statement, which was adopted by the first, second and fourth defendants. A preliminary objection was raised stating that the suit is not maintainable because the dispute raised does not come under Section 9 of Civil Procedure Code and that pre-suit notice under Section 80, C.P.C was not issued. This apart, the suit as framed is not maintainable under Section 26 of the Pondicherry Hindu Religious Institutions Act, 1972 (hereinafter referred to as ‘the Act’), because the prayer is for a decree to declare them as Board of Trustees to the above Devasthanam. The appellants did not have any right to continue in office as Board of Trustees after the expiry of the period of three years. Their appointment is governed under the Act and the Rules framed thereunder. They did not have an independent right to continue beyond the period of three years. Therefore, it is contended that the Court has no jurisdiction to decide whether the G.O issued by the third respondent herein was valid or not and that under Section 4 of the Act, the third respondent has the right to permit the Board of Trustees to continue or appoint a new Board of Trustees or appoint a Special Officer Hence, the plaintiffs have no right to continue in office.

8. The First Additional District Munsif, Pondicherry has framed five issues and answered the preliminary issue regarding maintainability of the suit. The Court held that the maintainability of the suit is not hit under Section 26 of the Act.

9. The unsuccessful defendants 1 to 4 filed the appeal before the Principal District Judge, Pondicherry in A.S No. 131/94 and urged the following grounds:—

1. Section 26 of the Act will show that no legal proceedings can be instituted by any Board. It is because plaintiffs claimed themselves to be the Board of Trustees, that the appellant raised the plea u/s 26 of the Act.

2. When the plaintiffs themselves claimed to be Board of Trustees and sought a declaration and injunction, then the Board of Trustees has no right to file a suit without obtaining necessary permission from the Government.

10. Under Ex. A1, the plaintiffs in the suit were appointed as Board of Trustees. One Annamalai Pillai tendered the resignation from the post of President and the Board continued for a period of three years under Ex. A1. It is to be seen that the Government constituted the Board of Trustees consisting of four persons for the administration of Sri Muthuvinayagar, Sri Subrama-niaswamy, Sri Nagamuthu Mariamman Devasthanam, Saram, Oulgarent commune in Pondicherry, in exercise of the power conferred under Section 4 of the Act. Learned District Munsif held that the suit has been filed by the appellants in their individual capacity for a declaration that they are entitled to continue as Board of Trustees and therefore, no prior permission is necessary to launch the litigation. Therefore, she held that Section 26 of the Hindu Religious Institution Act, 1972, has no application to the present case, and therefore, the suit is not hit by the said Section. Learned Principal District Judge, Pondicherry, reversed the said finding and held that the Section 26 of the Act is mandatory and admittedly, no previous sanction was obtained by the appellants in the suit to file the suit and therefore, the suit is not maintainable under Section 26 of the Act.

11. Therefore, the question now arising for consideration is whether notice under Section 26 of the Act is a pre-condition and the suit filed by the appellants without issuing the said notice under Section 26 of the Act is maintainable in law. Before proceeding to consider the question of law arising in this Second Appeal, it is beneficial to look into the certain provisions of Pondicherry Hindu Religious Institutions Act, 1972. The Board is defined as follows:—

2.“(a) ‘Board’ means a Board of Trustees appointed by the Government under Section 4.”

Section 4 deals with the appointment of Board of Trustees, which runs thus:—

“(i) Every institution shall be administered by a Board of trustees, which shall consist of five trustees, (hereinafter in this section referred to as members) appointed by the Government, by notification in the official Gazette, out of whom the Government shall nominate a President, Vice-President, Secretary and a Treasurer;

Provided that the Government may, pending the constitution of a Board for any institution, appoint a Special Officer to perform the functions of the Board.

(2) Subject to the provisions of this Act, the President, Vice-President, Secretary, Treasurer and the member shall perform such functions as may be prescribed.

(3) Subject to the provisions of section 5, every member of the Board shall hold office for a term of three years from the date of publication of the notification appointing him as member and the other conditions of his service shall be such as may be prescribed.

(4) Any member may resign his office by giving notice in writing, for such period as may be prescribed, to the Government, and, on such resignation being notified in the Official Gazette by the Government, such member shall be deemed to have vacated his office.

(5) A casual vacancy caused by the resignation of a member and sub-section (4) or otherwise may be filled by fresh appointment and the persons so appointed shall hold office for the remaining period for which the member in whose place he is appointed would have held office.

(6) Every Board constituted before the commencement of this Act for the purpose of the administration of any institution and existing at such commencement shall be deemed to be a Board constituted under the provisions of this Act for the purposes of administration of such institution and the members thereof shall continue to hold office as such for a period of three years from the date of the notification by which they were appointed.

(7) Every member shall, on his ceasing to hold office as such, hand over any property, document or cash which was under his control or in his possession by virtue of any of the provisions of the Rules made under this Act within such time as may be prescribed, successor in office or such other person as the Commissioner may, by order, direct.”

Section 26 of the Act reads as follows:—

“No suit, prosecution or other legal proceeding by any Board shall be filed or commenced before any Court without the previous sanction of the Government and no suit, prosecution or other legal proceeding shall be withdrawn or compromised by the Board except with the previous sanction of the Government.”

It is seen from the Section 4 that the Board of Trustees are appointed and constituted for the administration of the temples. As rightly pointed out by the learned Government Pleader, once the appointing authority had invoked Section 4(1) of the Act to constitute the Board of Trustees, Section 26, which is mandatory, in the nature, in my opinion, gets automatically attracted. We have already seen the relief asked for by the appellants, which is to pass a decree declaring that the plaintiffs are entitled to continue in the capacity of Members of the Board of Trustees. Thus, the appellants/plaintiffs have claimed that at the time of the institution of the suit, they were members of the Board of Trustees, and therefore, they asked for a declaration of entitlement to continue with the capacity of the members of the Board of Trustees. Learned District Munsif, in my opinion, is not right in holding that it is not the Board, which filed the suit and that the individuals were seeking declaration of the status of the Board of Trustees. Learned District Munsif, in my opinion has erred in holding that the appellants had filed the suit as individual. The appellants have specifically claimed in the plaint that they are not served with any such order of appointment of the fourth respondent/fourth defendant and till date, they are continuing their work and that the fourth defendant/fourth respondent also did not make any claim to assume office on the basis of the impugned appointment. In paragraph 6, it is stated as follows:—

“1) Section 26 of the Act will show that no legal proceedings can be instituted by any Board. It is because plaintiffs claimed themselves to be the Board of Trustees, that the appellant raised the plea u/s 26 of the Act.

2) When the plaintiffs themselves claimed to be Board of Trustees and sought a declaration and injunction, then the Board of Trustees has no right to file a suit without obtaining necessary permission from the Government.”

Section 26, which has been reproduced above, clearly contemplates that no suit or other legal proceedings, by any Board, shall be filed or commenced before any Court without previous sanction of the Government and no suit or other legal proceedings shall be withdrawn or compromised by the Board except with previous sanction of the Government. The Section, in my opinion, is mandatory.

12. Admittedly, in this case, the appellants have not obtained any previous permission or sanction from the Government, which is a condition precedent to maintain the suit. I, therefore, hold that the suit framed is not maintainable under Section 26 of the Act. I am unable to accept the contention of the learned Counsel for the appellant, Mrs. N. Krishnaveni, that the prayer in the suit was only to declare the order of the third defendant/third respondent, dated 5.3.1993, appointing the fourth defendant/fourth respondent as Special Officer, as void abinitio and inoperative. The prayer is not only to declare the order of the third defendant as void and inoperative, but a further relief is also asked for in the suit to declare that the plaintiffs were entitled to continue in the capacity of the Members of the Board of Trustee of the temples in question. Therefore, I am unable to accept or countenance the contentions of the learned Counsel for the appellant that the appellants need not obtain the necessary permission from the Government to bring the above legal action.

13. Learned counsel for the appellant is also not right in her submission that the learned District Judge has erred in misconstruing the prayer in the suit to mean that all the plaintiffs were members of the Board of Trustees and asked for a declaration of entitlement to continue as members of the Board of Trustees. The plaintiffs have specifically stated in paragraph No. 4 that they are continuing their work as Trustees and that the fourth respondent may seek to disturb the work of the appellants-plaintiffs on the basis of the impugned order and hence, the suit for declaration to the status of the plaintiffs and for an injunction became necessary. The reasons assigned by the learned District Judge in support of his conclusion are perfectly in order and sustainable in law. I therefore hold that the suit filed by the appellants is not maintainable and also hit by the provision of Section 26 of the Act. Therefore, the Second Appeal fails and is dismissed. However, there will be no order as to costs.

14. The dismissal of the appeal will not preclude the appellants herein from launching a fresh suit in accordance with the provisions of the Pondicherry Hindu Religious Institutions Act, 1972.

KA/RR/VCS

Subramanian And 2 Ot... v. Union Of India, Rep....