THE COMMISSIONER, HINDU RELIGIOUS AND CHARITABLE ENDOWMENTS ADMINISTRATION DEPARTMENT, MADRASversusSMT. P.S. SETHURATHINAM

                                                                                    ,.r-
A           THE COMMISSIONER, HINDU RELIGIOUS AND
            CHARITABLE ENDOWMENTS ADMINISTRATION
                     DEPARTMENT, MADRAS
                                 v.
                    SMT. P.S. SETHURATHINAM
B                              FEBRUARY 2, 1999

                 [S. RAJENDRA BABU AND M.B. SHAH, JJ.)

          Hindu Law:
c         Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959:
    Section 45(3) and Section 64(5) r/w Section 118.

           Scheme framed by Civil Court-Modification of-Power of Deputy
    Commissionel"--/Jeputy Commissioner acting under S.45(3) modified a
D   scheme framed by District Court in relation to a temple-Validity of-Held:
    In view of the decision in T. Lakshmikumara Thathachariar's case it is no
    longer open to the parties to contend that Deputy Commissioner has no
    jurisdiction under S. 64(5) to modify a scheme framed by Civil Court-Fur-
    ther, power cannot be exercised under S. 45 but only under S. 64(5) read with
    S.118--Hence, proceedings remitted to Deputy commissioner for fresh con-
E   sideration.

          The Deputy Commissioner, Hindu Religious and Cha.-itable Endow-
    ments Department exercising powers under Section 45(3) of the Tamil
    Nadu Hindu Religious and Charitable Endowments Act, 1959 modified a
    scheme framed by the Distict Court in relation to a temple managed by
F                                                                                      ,...
    the respondent. However, the High Court held that the Deputy Commis-
    sioner had no jurisdiction to modify the scheme settled by a civil court in
    exercise of the powers conferred under Section 64(5) of the Act. Hence this
    appeal.

G         The following question arose before this Court :-

          Whether the Commissioner ~r Deputy Commissioner has the power
    under the Act to modify the scheme framed by a civil court under Section
    64(5) read with Section 118 of the Act?

H         Allowing the appeal in part, this Court
                                         332
COMMR. HINDU RELIGIOUS CHARITABLE ENDOWMENTS'· P.S. SEIHURA1HINAM [R. BABU, J.)   333

     HELD : 1. In view of the decision in T. Lakshmikumara A
Thathachariar's case it is no longer open to the parties to contend that the
Deputy Commissioner has no jurisdiction to modify the scheme framed
pursuant to a decree of a civil court in exercise of his power under Section
64(5) of the Tamil Nadu Hindu Religious and Charitable Endowments.
Act, 1959. Further, the power could not be exercised under Section 45 of                B
the Act modifying the scheme but such power could be exercised only in
terms of Section 64(5) read with Section 118 of the Act. Hence, proceedings
remitted to the Deputy Commissioner for fresh consideration. (335-D-E]

     T. Lakshmikumara Thathachariar v. Commissioner, H.R.C.E., (1998)
6 sec 643, relied on.                                                                   c
        0. Radhakrishnan v. Manickam, (1974) (II) MW 179, referred to.

        CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1379 Of
1991.
                                                                                        D
     From the Judgment and Order dated 8.7.87 of the Madras High
Court in W.A. No. 165 of 1981.

     T. Harish Kumar, V. KrishNamurthy, V. Ram Subramanium and A
Mariarputham for the Appellants.
                                                                                        E
        T.L. Ram Mohan and R. Ayyam Perumal for the Respondent.

        The Judgment of the Court was delivered by

       RAJENDRA BABU, J. The Deputy Commissioner, Hindu Religious
and Charitable Endowments Department, exercising powers under Section F
45(3) of the Tamil Nadu Hindu Religious and Charitable Endowments Act,
1959 (Tamil Nadu Act 22 of 1959), hereinafter referred to as 'the Act',
made an order on February 10, 1965 modifying the scheme in relation to
Sri Bhavani Amman Temple in Periapalayam Village in Chingleput district
which had been settled by the District Court, Chingleput in O.S. No. 2 of
1949 framed on December 13, 1949. The Managing Trustee of the said G
Temple filed appeals and revision petitions before the statutory authorities
unsuccessfully. Thereafter, he filed a suit being O.S. No. 74 of 1969 for
setting aside the orders passed by the authorities under the Act. Two other
suits were filed being O.S. Nos. 81 of 1969 and 74 of 1969. All the suits
were decided by the Subordinate Judge, Kancheepuram by his judgment H
   334                   SUPREME COURT REPORTS                 [1999] 1 S.C.R.

A made on February 2, 1972 modifying the orders passed by the statutory
                                                                                 -'
  authorities and decreed the suit to a limited extent. An appeal was
  preferred to the High Court. The Commissioner of Hindu Religious and
  Charitable Endowments Board also had filed an appeal to the extent that
  the Subordinate Judge had decreed the suit in favour of the Managing
B Trustee. These two appeals were heard along with other appeals and,
  following the decision of the court in 0. Radhakrishna & Anr. v. Manickam
  & Ors., (1974) II MU 179, the High Court took the view that the Deputy
  Commissioner exercising powers under the Act had no jurisdiction to
  modify the scheme settled by a civil court in exercise of the powers
  conferred under Section 64(5). The result was that the High Court set aside
C the orders of the Deputy Commissioner and the Commissioner on appeal
  modifying the scheme in respect of Sri Bhavani Amman Temple. There-
  after, the Commissioner in proceeding dated June 24, 1978 defined the
  powers and duties of the executive officer and the hereditary trustee of the
  said Temple and challenging the same a writ petition was filed before the
D High Court. The learned single Judge who heard the matter found that the
  matter was fully covered by the earlier decision of the Court in AS. No.
  272 of 1973 between the same parties; that the matter stood concluded by
  the decision therein, and that, therefore, it was no longer open for the
  Commissioner to modify the scheme. Thereafter, the learned single Judge
  compared the provisions of the scheme and the order made in the proceed-
E ings impugned before the High Court and found that they were inconsistent
  in material particulars with the clauses of the scheme and, therefore, he
  was of the view that it had only the effect of circumventing the order made
  by the court in the earlier proceedings and on that basis quashed the order
  in question. On appeal filed against the said order by the Commissioner it
F was noticed that the provisions of Section 65 would not enable the Com-
  missioner to modify the scheme framed by the Court. Though it has
  expressed inability of the Commissioner to modify a scheme framed by the
  court, it was made clear that the Commissioner could deal with any scheme
  if it had been framed by the Deputy Commissioner or any scheme framed
  under the earlier Act. Thus the Division Bench was of the view that the
G scheme framed by a civil court could not be modified by the Commisioner
  and on that basis it dismissed the writ appeal. Challenging this view of the
  High Court this appeal has been filed before this Court.

          The question for consideration is whether the Commissioner or the
H Deputy Commissioner has power under the Act to modify the scheme
COMMR. HINDU RELIGIOUS CHARITABLE ENDOWMENTS v. P.S.SIIDJURATillNAM [R. BABU, J.)   335

framed by a civil court under Section 64(5) read with Section 118 of the                  A
Act. This question is squarely answered by this Court in T. Lakshmi
kumara T71athacha1iar v. Commissioner, H.R.C.E. & Ors., [1998] 6 SCC 643.
In this decision this Court, after examining the scheme of the Act, has taken
the view that the Deputy Commissioner exercising powers under Section
64 of the Act could modify a scheme and it includes modification of a
scheme framed under Section 92 Civil Procedure Code by a civil court.
                                                                                          B
Therefore, the view taken in 0. Radhakrishna & Anr. v. Manickam & Ors.
(supra) has been 'overruled by this Court by holding that the interpretation
of law made therein is not correct. Therefore, it is no longer open to the
parties to contend that the Deputy Commissioner has no jurisdiction to
modify the scheme framed pursuant to a decree of a civil court in exercise                c
of his power under Section 64(5) of the Act. Hence the judgment under
appeal cannot be sustained.

       However, the learned counsel for the respondent brought to our
notice that the power exercised by the Deputy Commissioner in the present
case is one under Section 45 of the Act while making appointments of D
 executive officer which is ministerial in nature. Various clauses referred to
in the order which were challenged before the High Court being inconsis-
tent with the scheme could not stand unless scheme is modified. Therefore,
appropriate course to be adopted in the case is to make it clear that the
power could not be exercised under Section 45 of the Act modifying the E
scheme but such power could be exercised only in terms of Section 64(5)
read with Section 118 of the Act. Therefore, we uphold that part of the
order made by the High Court, quashing the order made by the Deputy
Commissioner with this modification that the proceedings shall stand
remitted to the Deputy Commissioner for fresh consideration of the matter
in the light of the law declared by this Court in T. Lakshmikumara F
T7zathachariar v. Commissioner, H.R.C.E. & Ors. (supra) and as stated by
us in the course of this order.

     We order accordingly. In the circumstances of the case there shall
be no order as to costs.
                                                                                          G
v.s.s.                                                       Appeal partly allowed.