Read Time: 08 minutes

Synopsis

The Madras High Court recently observed that when an effective alternative remedy is available to the aggrieved party before the hierarchy of courts including the high court, the petitioner is not entitled to by-pass the alternative remedy available and rush to the high court by invoking Article 226 of the Constitution of India.

The bench of Justice S Sounthar observed so in a matter where the petitioner had filed a writ petition under Article 226 seeking a writ of certiorari to quash an order passed by the Joint Commissioner of the Tamil Nadu Hindu Religious and Charitable Endowments Department (HR&CE Dept).

By the impugned order, the Joint Commissioner had ordered an enquiry into the custom and usages pertaining to various religious services performed at Arulmigu Devarajaswamy Temple, Kanchipuram to ascertain a Code Book of all religious services, and during the pendency of such enquiry, the Joint Commissioner had permitted one other person to perform the duties as Archaka in the said temple.

It was the petitioner's claim that the Joint Commissioner's order permitting the other person to be the Archaka without deciding his entitlement to hold Archakaship was totally illegal. He submitted that in order to perform pooja as an Archaka in the said Temple proper training under Samhithas like Jayagya Samhihai/Padma Samhithai was absolutely necessary which the other appointed person did not have.  

The respondent parties raised the question of maintainability of the writ petition in view of the availability of alternative remedy of appeal before the Commissioner under Section 69 of the HRCE Act.

However, the petitioner asserted that since the order of the Joint Commissioner was interim in nature, therefore, the petitioner was entitled to invoke the extraordinary jurisdiction of the high court. The argument was also put forth that the Joint Commissioner had not followed the principles of natural justice and did not afford an opportunity to the parties to lead evidence, therefore also, a writ petition was maintainable before the high court. 

The high court noted that the Joint Commissioner had passed the impugned order in a suo motu original proceedings initiated under Section 63 (e) of HRCE Act and under Section 63 (e) of the Act, the Joint Commissioner has power to enquire into and decide disputes relating to the questions whether any person is entitled, by customs or otherwise, to any honour, emolument or perquisite in any religious institution and what the established usage of a religious institution is in regard to any other matter.

Section 69 of HRCE Act provides appeal remedy to any person aggrieved by any order passed by Joint Commissioner under Chapter-V of the Act (i.e., Section 63 to 70), pointed out the court. 

Court held that the two above mentioned provisions make it clear that the order passed by the Joint Commissioner in a proceeding initiated under Section 63 (e) of the HRCE Act, which falls under Chapter-V of the said Act, is appealable to the Commissioner.

Court further highlighted that against the order passed by the Commissioner, in appeal, any party aggrieved is entitled to file a statutory suit before a regular Civil Court and any person aggrieved by the Decree passed in such suit has got appeal remedy before the high court under Section 70(2) of the HRCE Act. 

In view of the same, the court held that in the instant matter, the aggrieved person was not only having appeal remedy before the Statutory Authority, he was also entitled to file a suit before the regular civil court and move before the high court by way of regular appeal against the decree passed by the civil court. 

Moreover, court held that even an interim order passed in a proceeding initiated under Section 63 (e) of the HRCE Act is appealable.

Reliance was placed in this regard on the Apex Court's decision in Virudhunagar Hindu Nadargal Dharma Paribalana Sabai and others vs. Tuticorin Educational Society and others (2019).

Hence, the court held that the writ not maintainable. 

Case Title: S.Krishnasamy Bhattar vs The Joint Commissioner HRCE Dept and Others