Madras High Court
Goswami Madam vs The Joint Commissioner on 23 November, 2021
Author: M.Sundar
Bench: M.Sundar
WP(MD) No.2357 of 2013
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 23.11.2021
CORAM
THE HON'BLE MR. JUSTICE M.SUNDAR
W.P(MD) No.2357 of 2013
and M.P.(MD)No.1 of 2013
Goswami Madam ... Petitioner
Vs.
The Joint Commissioner,
Joint Commissioner Office,
HR & CE Department,
Sivagangai. ... Respondent
PRAYER: Petition filed under Article 226 of the Constitution of India, for
the issuance of a Writ of Certiorari, to call for the records relating to the
impugned order bearing Na.Ka.No.7735/2012/Aa4 dated 23.01.2013 issued
by the respondent and quash the same.
For Petitioner : Mr.S.Anwar Sameem
For Respondent : Mr.M.Lingadurai,
Special Government pleader.
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https://www.mhc.tn.gov.in/judis
WP(MD) No.2357 of 2013
ORDER
Mr.S.Anwar Sammem, learned counsel for writ petitioner and Mr.M.Lingadurai, learned special Government Pleader for the lone respondent are before me.
2. Read this in conjunction with and in continuation of earlier proceedings made in the previous listing on 09.11.2021, which reads as follows:
'Mr.S.Anwar Sameem, learned counsel for writ petitioner and Mr.M.Lingadurai, Government Advocate (civil side) on behalf of lone respondent are before this Court.
2. Counter-affidavit has not been filed by the lone respondent and State counsel submits that a counter-affidavit may not be necessary owing to the short point on which the matter turns.
3. However, learned counsel for writ petitioner requests for an accommodation citing personal difficulty at his end. Request acceded to.
4. List a fortnight hence.
5. List on 23.11.2021.' 2/22 https://www.mhc.tn.gov.in/judis WP(MD) No.2357 of 2013
3. Pursuant to the aforesaid proceedings, captioned main writ petition was listed today. It was taken up and heard out.
4. A 'notice dated 23.01.2013 bearing reference Na.Ka.No. 7735/2012/Aa4' issued by the lone respondent (hereinafter 'impugned SCN' for the sake of convenience and clarity, to be noted SCN denotes 'show cause notice') has been assailed in this main writ petition.
5. A perusal of the case file placed before me shows that captioned writ petition was filed on 08.02.2013, therefore it is more than eight years old and in less than three months from now it will turn nine. An interim order has been granted by this Court on 11.02.2013 in M.P.(MD)No.1 of 2013 and the same reads as follows:
'Interims Stay. Notice.' In deference to aforementioned interim order impugned SCN has now been abeyance for nearly nine years now.3/22
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6. The impugned SCN reads as follows:
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7. Assailing the impugned SCN, learned counsel for writ petitioner notwithstanding very many averments and several grounds in writ affidavit made submissions, a summation of which is as follows:
i) under Section 4 of 'The Tamil Nadu Religious and Charitable Endowments Act, 1959 (Tamil Nadu Act 22 of 1959)' (hereinafter 'TN HR&CE Act' for the sake of convenience and clarity) only the Commissioner of 'Tamil Nadu Hindu Religious and Charitable Endowments Department' [hereinafter 'TN HR&CE Department' for the sake of convenience and clarity] has the powers whereas impugned SCN has been issued by the Joint Commissioner.
ii) the Trust deed qua writ petitioner being a trust deed dated 16.01.1995 makes it clear that the writ petitioner entity does not qualify either as a religious institution within the meaning of Section 6 (18) of TN HR & CE Act or as a temple within the meaning of Section 6 (20) of TN HR&CE Act. In similar circumstances, this Court interfered and set aside a notice vide order dated 30.01.2013 made in W.P. 5/22 https://www.mhc.tn.gov.in/judis WP(MD) No.2357 of 2013 (MD)No.30063 of 2012 (Nithyananda Dhyanapeetam, Thiruvannamalai Branch Vs. The Commissioner, Hindu Religious and Charitable Endowments Department, Chennai).
8. In response to the above, learned State Counsel made submissions, a summation of which is as follows:
i) merely because, impugned SCN has been issued by the lone respondent it cannot be gain said that the respondent has not been authorised by the Commissioner.
ii) the examination of the trust deed and as to whether the writ petitioner entity is qualifies as a religious institution or a temple is possible only when the writ petitioner responds to the impugned SCN but writ petitioner without even responding to the impugned SCN has rushed to this Court.
iii) the order pressed into service is distinguishable on facts as that is a case where the Hon'ble Court came to the 6/22 https://www.mhc.tn.gov.in/judis WP(MD) No.2357 of 2013 conclusion that the writ petitioner entity was not a religious institution and that such conclusion was arrived at on the basis of perusal of trust deed.
9. By way of rejoinder, learned counsel for writ petitioner reiterated the submissions made in the opening arguments.
10. I now embark upon the exercise of discussion and giving by dispositive reasoning.
11. From the rival submissions captured supra it comes to light that the first point turns on Section 3 (2) of TN HR & CE Act and the authority being the Commissioner of 'Tamil Nadu Hindu Religious and Charitable Endowments Department' ['TN HR&CE Department' for the sake of brevity].
12. I am of the considered view that this argument is a non-starter. The reason is sub-Section (3) of Section 1 of TN HR&CE Act, which reads as follows:
7/22
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(1) & (2) ..........
(3).It applies to all Hindu public religious institutions and endowments including the incorporated Dewaswoms and Unincorporated Dewaswoms.'
13. A perusal of sub-Section (3) Section 1 of TN HR&CE Act makes it clear that the TN HR&CE Act applies to all Hindu religious institutions and endowments. If an exemption has to be made, the Government is the authority under Section 4 of TN HR&CE Act. Absent any exemption under Section 4, Section 1(3) of TN HR&CE Act will straightaway operate. In the case on hand, the argument is the writ petitioner entity is neither a religious institution nor a temple within the meaning of Sections 6(18) and 6(20) of TN HR&CE Act. This can be tested only if writ petitioner response to the impugned SCN. In the case on hand, the writ petitioner has jumped the gun and come to this Court. Therefore, this argument turning on Section 3(2) of TN HR&CE Act is a non-starter in the case on hand i.e., it does not come into play at all as that talks about / deals with enquiry into allegations of mismanagement.
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14. This takes us to the argument predicated on Section 6(18) and 6 (20) of TN HR&CE Act. A careful perusal of Section 1(3) of TN HR & CE Act makes it clear that it applies to (a) religious institutions (b) endowments (c) incorporated Dewaswoms and (d) Unincorporated Dewaswoms, these four entities are defined in Sections 6(18), 6(20), 6(12) read with Schedule-I and 6(23) read with Schedule-II respectively of TN HR&CE Act. What is of greater significance is, a careful perusal of the definition of religious institutions in Section 6(18) includes a specific endowment and specific endowment is separately defined under sub-Section (19) of Section 6 of TN HR&CE Act. Sections 6(18) and 6(19) of TN HR&CE Act, which read as follows:
'6. Definitions.- In this Act, unless the context otherwise requires, (1) to (17) .................................. (18) "Religious institution" means a math, temple or specific endowment and includes,:-
(19) "specific endowment" means any property, or money endowed for the performance of any f specific service or charity in a math or temple, or for the performance of any other religious charity , bust does not include an inam of the nature described in Explanation (1) to clause(17)' 9/22 https://www.mhc.tn.gov.in/judis WP(MD) No.2357 of 2013
15. It is further to be noted that Section 6(18) talks about math as well as temple and the same are defined in Sections 6(13) and 6(20), which read as follows:
'6. Definitions.- In this Act, unless the context otherwise requires, (1) to (12) .................................. (13) “math” means a Hindu religious institution with properties attached thereto and presided over by a person, the succession to whose office devolves in accordance with the direction of the Founder of the institution or is regulated by usage and-
......
......
(20) "temple" means a place by whatever designation known, used as a place of public religious worship, and dedicated to, or for the benefit of, or used as of right by, the Hindu community or of any section thereof, as a place of public religious worship;
16. Therefore, a religious institution will include a specific endowment within the meaning of Section 6(19) of TN HR&CE Act. In other words if a corpus has been dedicated for the performance of any specific service in a math or a temple, the same would come within the 10/22 https://www.mhc.tn.gov.in/judis WP(MD) No.2357 of 2013 sweep of Section 6(18) of TN HR&CE Act. This is owing to a conjoint reading of Sections 6(19) and Section 6(18) of TN HR&CE Act.
17. This takes us to Clause 3 (a) of the Trust Deed, which reads as follows:
'3.The objects of the Trust are:
(a) to establish and maintain dharmashalas and chowltries at Rameswaram and other pilgrim centres for the benefit of the pilgrims and the members of the public;'
18. A careful perusal of aforementioned Clause 3(a) of the Trust Deed qua writ petitioner entity makes it clear that the dedication of the corpus is to establish and maintain dharmashalas and chowltries at Rameswaram and other pilgrim centres. Therefore, prima facie this may qualify as endowments of a corpus for performance of a specific service being establishment and maintenance of dharmashalas and chowltries at Rameswaram and other pilgrim centres. Therefore, there is certainly a prima facie case which needs to be examined based on factual particulars more particularly granular factual details and this is imperative to answer the query as to whether writ petitioner qualifies as a religious institution, specific endowment etc., qua TN HR&CE Act.
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19. This takes me to the last point which turns on the order made by another Hon'ble Judge which was pressed into service. I have no difficulty in accepting the submission of learned State Counsel that in that order this Court has come to the conclusion that the trust deed therein does not show that it was intended to be created as a Hindu religious institution. This is captured in paragraph 36 of the said order. In contradiction, in the case on hand I come to a prima facie conclusion that the writ petitioner's entity may come within the sweep of Section 6(19) of TN HR&CE Act owing to clause 3(a) of the Trust deed but a firm decision is possible only on examining granular factual particulars which in turn is possible only when writ petitioner responds to impugned SCN with supporting materials. In addition to this point, I also find two other points which distinguish the case on hand from the case that has been pressed into service. One point is, on facts in the case that has been pressed into service viz., Nithyananda Dhyanapeetam case, the writ petitioner responded to the show cause notice and thereafter, approached the Court. This is captured in paragraph 7 of the order, which is at page 5 of the order and the same reads as follows:
'7.Within 4 days from the date of issuance of the show cause notice, the Manager of the petitioner trust and founder of 12/22 https://www.mhc.tn.gov.in/judis WP(MD) No.2357 of 2013 the Trust Sri Nithyananda Swami have received Caveat petitions lodged by the second respondent with the District and Sessions Judge, Tiruvannamalai, Sub Court and Munsif Court. This was apprehending that the trust may move the civil court against the action of the respondents department. Immediately upon receipt of the show cause notice, the Manager of the petitioner trust sent a letter stating that the matter has been referred to their headquarters and that after getting a reply, he may revert to them. Since the show cause notice had referred to the report of the third respondent, Inspector, a request has also been made to give a copy of the inspection report, which formed foundation for the show cause notice. Since there was no reply forthcoming, the petitioner trust moved this court with this writ petition seeking to challenge the show cause notice dated 11.10.2012.'
20. In the case on hand, the writ petitioner, as already alluded to supra, has jumped the gun and come to this court even without responding to the impugned SCN. To be noted, impugned SCN itself has been issued owing to the petitioner not responding earlier. This is articulated in the impugned SCN which has been scanned and reproduced elsewhere supra in this order. The second distinguishing point is, Nithyananda Dhyanapeetam case, does not deal with Section 1(3) of TN HR & CE Act, whereas I have delved into Section 1(3) of TN HR & CE Act in the order on hand and I 13/22 https://www.mhc.tn.gov.in/judis WP(MD) No.2357 of 2013 have held that exemption to Section 1(3) can only be by way of operating / invoking Section 4 of TN HR&CE Act.
21. This takes us to the scope of challenge to a SCN in writ jurisdiction. Challenge to a SCN in writ jurisdiction can only be only on very limited grounds ie., jurisdictional issue, Natural Justice Principle ['NJP' for brevity] violation, disregarding settled principle of law to mention some of the exceptional circumstances under which a Writ Court will interfere qua challenge to an SCN. One of the recent case laws on this point is Coastal Container Transporters Association case {order dated 26.02.2019 in Civil Appeal No.2276 of 2019} rendered by Hon'ble Supreme Court. Facts are captured in paragraph No.4 and ratio (capturing line of authorities) is set out in paragraph No.19. Paragraph 4 and paragraph 19 read as follows:
'4. Necessary facts, in brief, are as under :
First respondent is an association, whose members are transport operators engaged in the business of transportation of goods entrusted by the customers. By way of impugned show cause notices, the appellants have proposed to demand service tax from the respondents under the category of cargo handling service, while it is the case of the respondents that the service which is being provided by 14/22 https://www.mhc.tn.gov.in/judis WP(MD) No.2357 of 2013 them, falls under the taxable category of “goods transport agency”. The respondents, to bolster their case, have placed reliance upon circulars dated 06.08.2008 and 05.10.2015 issued by the Central Board of Excise and Customs (CBEC).
Based upon the intelligence gathered by the officers of Rajkot Regional Unit, which revealed that several business entities including respondent nos.2 and 3 who are engaged in doing the business of cargo handling in west coastal region but had got themselves registered under good transport agency, by taking approval from the competent authorities, searches were conducted in the premises of respondent nos.2 and 3. It is alleged that during such searches several incriminating documents, including the quotations submitted by the respondent- companies to their customers were seized and statements of the Directors were recorded as per the provisions of Central Excise Act, 1944 read with the provisions under Finance Act, 1994. Subsequently, the show cause notices dated 08.10.2015 and 30.09.2015, were issued to respondent nos.2 and 3, which are impugned in the writ petition filed before the High Court.
5. to 18. .....
19. On the other hand, we find force in the contention of the learned senior counsel, Sri Radhakrishnan, appearing for the appellants that the High Court has committed error in entertaining the writ petition under Article 226 of Constitution of India at the stage of show cause notices.15/22
https://www.mhc.tn.gov.in/judis WP(MD) No.2357 of 2013 Though there is no bar as such for entertaining the writ petitions at the stage of show cause notice, but it is settled by number of decisions of this Court, where writ petitions can be entertained at the show cause notice stage. Neither it is a case of lack of jurisdiction nor any violation of principles of natural justice is alleged so as to entertain the writ petition at the stage of notice. High Court ought not to have entertained the writ petition, more so, when against the final orders appeal lies to this Court. The judgment of this Court in the case of Union of India & Anr. v. Guwahati Carbon Ltd. (supra) relied on by the learned senior counsel for the appellants also supports their case. In the aforesaid judgment, arising out of Central Excise Act, 1944, this Court has held that excise law is a complete code in order to seek redress in excise matters and held that entertaining writ petition is not proper where alternative remedy under statute is available. When there is a serious dispute with regard to classification of service, the respondents ought to have responded to the show cause notices by placing material in support of their stand but at the same time, there is no reason to approach the High Court questioning the very show cause notices. Further, as held by the High Court, it cannot be said that even from the contents of show cause notices there are no factual disputes. Further, the judgment of this Court in the case of Malladi Drugs & Pharma Ltd. v. Union of India 5, relied on by the learned senior counsel for the appellants also supports their case where this Court has upheld the 16/22 https://www.mhc.tn.gov.in/judis WP(MD) No.2357 of 2013 judgment of the High Court which refused to interfere at show cause notice stage.'
22. From the narrative thus far, it is clear that none of the aforementioned exceptions arise in the case on hand. To be noted, it has already been alluded to supra by me that the argument predicated on Section 1(3) of TN HR&CE Act is a non-starter.
23. Therefore, the case on hand does not warrant interference qua impugned SCN.
24. Be that as it may, it is only appropriate that the writ petitioner responds to the impugned SCN and the respondent takes a decision on the same on the merits of the reply and in accordance with law after conducting an enquiry and calling for records if necessary.
25. This court also takes into account the fact that there was an interim stay operating for eight long years and is in the anvil of turning nine three month from now. Therefore, captioned writ petition is disposed of by 17/22 https://www.mhc.tn.gov.in/judis WP(MD) No.2357 of 2013 making the following order:
(a) this Court does not interfere in impugned SCN and the same is sustained however, subject to other limbs of this order infra;
(b) writ petitioner shall respond to the impugned SCN within a fortnight from today i.e., on or before 07.12.2021. The respondent shall decide the matter on the merits of the reply and in accordance with law within six weeks from 07.12.2021 i.e., on or before 18.01.2022.
(c) It is open to the respondent to call for further records and also call upon the constituents of the writ petitioner entity to go before him to conclusively decide the issue and the writ petitioner shall co-operate with this exercise without seeking undue adjournments or long / needless rescheduling;
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(d) The observations made in this order are for the limited purpose of disposal of the captioned writ petition, they shall be treated as prima facie observations and therefore, they shall neither impede nor serve as impetus in the aforementioned exercise which shall be undertaken by the respondent;
(e) As an interim order has been operating for eight long years now, this Court deems it appropriate to direct status quo as of today to be maintained till the disposal of the matter by the respondent on or before 18.01.2022;
(f) The order of the respondent disposing of the matter shall be communicated to the writ petitioner under due acknowledgment within seven working days from the date of the order;
(g) If the order / conclusion of the respondent is adverse to the writ petitioner, the order of status quo will 19/22 https://www.mhc.tn.gov.in/judis WP(MD) No.2357 of 2013 continue to operate for another fortnight from 18.01.2022 i.e., up to 01.02.2022; and
(h) If the writ petitioner does not send a reply within a fortnight from today, the benefit of status quo order will come to an end and it will be open to the respondent to proceed in accordance with law.
Consequently, connected miscellaneous petition is also closed. There shall be no order as to costs.
23.11.2021 Index : Yes/No Internet : Yes /No vsm Note :
In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate / litigant concerned.20/22
https://www.mhc.tn.gov.in/judis WP(MD) No.2357 of 2013 To The Joint Commissioner, Joint Commissioner Office, HR & CE Department, Sivagangai.21/22
https://www.mhc.tn.gov.in/judis WP(MD) No.2357 of 2013 M.SUNDAR, J.
vsm W.P(MD) No.2357 of 2013 23.11.2021 22/22 https://www.mhc.tn.gov.in/judis