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Judgment
Veeraswami, J.—This appeal under the Letters Patent is from an order of Srinivasan J, dismissing a petition to quash an order of the first
respondent dated 30th March 1963, by which he framed certain additional charges against the appellant and pending enquiry into the charges,
appointed the second respondent as a fit person. In making the appointment, the first respondent considered that by reason of the suspension a
temporary vacancy had occurred and it became necessary to act under S. 54 (2) and (3). He was mindful of the claim of the eldest son of the
appellant, but because he was at the time only 19 years of age, and was a student studying in the IX standard, he was considered to be not
capable of managing the affairs of the temple. That is how he appointed the second respondent, a stranger to the family of the appellant, a fit
person to carry on the functions of the hereditary trustee. There is no dispute that the office of trusteeship is hereditary and the administration of the
temple of Navaneetha-krishnaswami is governed by a Scheme framed by this Court in A. S. 165 of 1956. The appellant contended before the
learned Judge that the first respondent, acting as he did under S. 54 (2) and (3) in appointing a fit person, misdirected himself and the order was
therefore without jurisdiction. This contention did not find favour with the learned Judge. He was of the view that though the first respondent was
not right in citing S. 54 (2) of Madras Act 22 of 1959, he had power to make the appointment under S. 53 (4). In the course of his order, the
learned Judge also considered that an interim suspension pending an enquiry could not be said to give rise to a temporary vacancy within the
meaning of S. 54 (2) and for this reason also, he considered that the proper section which would be applicable to appointment of a fit person in
case of suspension pending an enquiry, was S. 53 (4). Before us, Mr. Vedantachari, for the appellant argues there being no dispute that the office
of trusteeship in the temple is hereditary, and though the power to appoint a fit person in a contingency like this is provided for in S. 54 (4), the
manner of making the appointment of a fit person is laid down in S. 54 (3) and it follows, therefore, that in appointing a fit person, the Deputy
Commissioner concerned should have due regard to the claims of members of the family, if any, entitled to the succession. Learned Counsel urges
that due regard in this case had not been paid by the first respondent to the claims of the eldest son of the appellant and that the grounds for
eliminating him from appointment as a fit person were not tenable.
S. 53 of the Act provides for power to suspend, remove or dismiss a trustee of a religious institution. Sub-S. (2), while conferring the power,
enumerates the grounds on which punishment of one or the other category can be imposed. Sub-S. (3) prescribes the procedure to be followed in
enquiries under Sub-S. (2). Sub-S. (4) reads:
Pending the disposal of the charges framed against the trustee, the appropriate authority may place the trustee under suspension and appoint a fit
person to discharge the duties and perform the functions of the trustee.
Sec. 54 relates to filling up of vacancies in the office of hereditary trustee. The first part of the section is to the effect that when a permanent
vacancy occurs in the office of the hereditary trustee, the next in the line of succession shall be entitled to succeed to the office. A similar provision
is made by Sub-S. (2) in respect of a temporary vacancy and it says that when such a vacancy occurs under Sub-S. (2) of S. 53, the next in the
line of succession shall be entitled to succeed. Under these two Sub-Sections it may be noticed, the next in the line of succession is entitled to
succeed as a matter of right. Sub-S. (3) covers filling up of permanent or temporary vacancies arising in certain other contingencies, one of them
being when such a vacancy cannot be filled up immediately, and provides for appointment of a fit person to perform the functions of the trustee.
The Sub-Section has an explanation which directs that in making an appointment the Deputy Commissioner should have regard to the claims of
members of the family, if any, entitled to the succession. The scheme of S. 54 appears to be that, where a vacancy arises, whether permanent or
temporary, it should be filled up by the next in the line of succession, but if there is any dispute about succession or the vacancy cannot be filled up
for other reasons, instead of filling up the vacancy, power is given for appointment of a fit person, so that the functions of the hereditary trustee may
be continued to be discharged pending filling up of the vacancy. Sub-S. (2), which as we said relates to a temporary vacancy, covers cases of
suspension under Sub-S. (2) of S. 53, and a perusal of Sub-S. (2) of S. 53 shows that a suspension need not necessarily be by way of
punishment. Cl. (a) of Sub-S. (2) empowers suspension on the ground that the trustee ceases to profess the Hindu religion. Similarly Cls. (f) and
(g) of the Sub-Section enable suspension in cases of the trustee being of unsound mind or an undischarged insolvent. It is, therefore, clear that
Sub-S. (2) of S. 54 not merely covers a temporary vacancy arising from suspension by way of punishment, but also extends to a suspension not by
way of punishment. It may be possible, therefore, to assume that Sub-S. (2) of S. 53, because of the power to suspend on enquiry, may include
also a power of dispensing pending an enquiry. But Sub-S. (4) of S. 53 specifically provides for such a contingency, while suspension by
punishment is separately dealt with by Sub-S. (2) of S. 53 and also by Sub-S. (5) of S. 53, which provides for appeal against orders made under
Sub-S. (2) of that section. It becomes, therefore, clear that as Sub-S. (4) makes a specific provision for suspension pending an enquiry, such a
power is, therefore, not covered by the other provisions which provide for suspension following an enquiry. We are of the view, therefore, that
suspension pending an enquiry does not fall within the ambit of S. 54, because of the principle that a special provision excludes the general.
Sub-S. (4), while providing for power of suspension pending an enquiry, gives also power to appoint a fit person to discharge the duties and
perform the functions of the trustee. The Sub-Section does not speak of filling up of a vacancy unlike S. 54 and (2). Nor does Sub-S. (4)
prescribe any procedure to be followed in appointing a fit person, as for instance, the explanation to Sub-S. (3). The statutory provisions, as they
stand now, do not require that, when appointing a fit person, the claims of the members of the trustee''s family should be taken into account.
But having regard to the scheme of S. 54, the policy of the Legislature appears to be that while dealing with a vacancy in a hereditary office, the
right of the next in line to succeed is recognised and it is because of that, even where a vacancy cannot be filled up immediately, in appointing a fit
person, due regard should be had to the claims of the members of the family of the trustee. On principle, we fail to see any basic distinction
between a suspension pending an enquiry and suspension following an enquiry by way of punishment. In either case, a vacancy arises. But Sec. 54
confined only to cases of suspension and vacancy arising out of it, other than suspension pending an enquiry, and therefore, it is not possible to
accept the contention of the appellant that, while a fit person is appointed under Sec. 53(4) the appellant can invoke at the same time the aid of the
explanation to Sub-Sec. (3) of Sec. 54.
Nevertheless, we are of the view that having regard to the nature of the office of hereditary trustee under the general law, the appellant is entitled
to contend that, although Sub-Sec. (4) does not provide for it, it is necessary, while appointing a fit person, to have due regard to the claims of the
members of the family of such trustee.
But that can make no difference to the validity of the order of the first respondent because as a matter of fact the first respondent considered the
claims of the eldest son of the appellant, and for reasons given by him, he thought that he was not suitable for the appointment. The power to
appoint a fit person is a discretionary power and all that is required for a valid exercise of the power is that, in making an appointment, he must
have due regard to the claims of the members of the family and once that requisite is satisfied, for reasons stated by the concerned officer, this
Court will not ordinarily interfere with the discretion exercised by him in fiat regard.
We, therefore, come to the conclusion that the order of the learned Judge is right, though on slightly different reasons. The appeal is dismissed.
No costs. It is represented for the appellant that his eldest son has ceased to be a student and is of proper age and also the manager has since
been transferred and the claims of his eldest son should be considered. But that is entirely a matter for the appellant to take up with the concerned
authority.