Madras High Court
S.P.Selvam vs The Commissioner on 18 August, 2022
Author: C.Saravanan
Bench: C.Saravanan
W.P.No.20193 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved On 10.08.2022
Pronounced On 18.08.2022
CORAM
THE HON'BLE MR.JUSTICE C.SARAVANAN
W.P.No.20193 of 2022
and WMP.No.19441 of 2022
1. S.P.Selvam
2.S.Rajeswari
3.J.Radha
4.A.R.Suganya
5.V.Narasiman .. Petitioners
vs.
1.The Commissioner
H.R. & C.E. Admn.Department,
119, Uthamar Gandhi Salai,
Nungambakkam, Chennai – 34.
2.The Joint Commissioner,
H.R.& C.E.Admn.Department,
Madurai.
3.The Deputy Commissioner/Executive Officer,
A/m Kallalagar Thiru Koil,
Alagar Koil, Madurai.
4.Smt.Pitchai Ammal @ Kamatchi
5.M.Anandan .. Respondents
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https://www.mhc.tn.gov.in/judis
Page No 1 of 18
W.P.No.20193 of 2022
Prayer : Petition filed under Article 226 of the Constitution of India for
issuance of a Writ of Certiorarified Mandamus, calling for the records
from the first respondent relating to his order passed in
R.Dis.A.P.No.24/2019 D2 dated 16.06.2022 and quash the same and
consequently remand the matter to the first respondent with a direction to
decide the dispute raised by the petitioners in O.A.No.16 of 2017 filed
before the Joint Commissioner H.R. & C.E. Admn. Department, Madurai
u/s.63(c) and (d) of the TN HR & CE Act, 1959 within the time stipulated
by this Court.
For Petitioners : Mr.E.Ohm Prakash
Senior Counsel
for Mr.V.Venkatasamy
For R1 to R3 : Mr.S.Yashwanth
Addl.Govt.Pleader.
ORDER
The petitioners have purchased an immovable property directly from the descendants of the original trustees of Vandiyur Nacharammal Vagaira Kattalai on 18.10.2007 who had executed a Trust Settlement Deed dated 23.04.1923 and dedicated properties for specific endorsement.
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2. The Deed contemplates three Schedules. Schedule 'A' Property deals with property dedicated for performing Mandagapadi during Chitra Pournami Festival where the Kallalagar's deity to visit the Schedule 'A' property. Income from Schedule 'B' and 'C' properties were to be utilized for maintaining the Schedule 'A' property for Mandagapadi.
3. It appears that after the execution of Trust Settlement Deed dated 23.04.1923 by Smt.Nacharammal and two others in favour of one Muthusamy Pillai a Scheme was framed under Section 58(1) of the Madras Hindu Religious and Charitable Endowments Act, 1951 (hereinafter referred to as the MHR&CE Act) on 30.11.1955 by the Deputy Commissioner for the manner in which, the Trust and the properties were to be administered.
4. After the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (hereinafter referred to as the TNHR&CE Act) came into force, the above scheme was further modified on 04.04.1967. ______________ https://www.mhc.tn.gov.in/judis Page No 3 of 18 W.P.No.20193 of 2022
5. The relevant clauses from the respective schemes framed under Section 58(1) of the MHR&CE Act, 1951 and modified scheme under Section 64(5)(a) of the TNHR&CE Act, 1959 are reproduced below:-
Settlement of Scheme under Settlement of Scheme under MHR&CE Act TNHR&CE Act
1. .... 1. ....
2. The Administration of the 2. The Administration of the trust created by Nachiarammal trust created by Nachiarammal and others, Vandiyur, Madurai and others, Vandiyur, Madurai Taluk and District and all other Taluk and District and all other temples and sub-shrines temples and sub-shrines attached thereto and all the attached thereto and all the properties, movable and properties, movable and immovable, which belong to or immovable, which belong to or have been or may hereinafter be have been or may hereinafter be given, dedicated or endowed given, dedicated or endowed thereto shall, subject to the thereto shall, subject to the provisions of this scheme, vest provisions of this scheme, vest in the hereditary trustee or in the hereditary trustee or trustees for the time being and trustees for the time being and such non-hereditary trustees as such non-hereditary trustees as may be appointed by the may be appointed by the appropriate authority in appropriate authority in accordance with the provisions accordance with the provisions under Section 39 of the Act, under Section 47 of the Act, who shall form the Board of who shall form the Board of Trustees. The total number of Trustees. The total number of trustees however should not trustees however should not exceed five. exceed five.
3. ..... 3. .....
4. (a) The Chairman, Board of 4. (a) The Chairman, Board of ______________ https://www.mhc.tn.gov.in/judis Page No 4 of 18 W.P.No.20193 of 2022 Settlement of Scheme under Settlement of Scheme under MHR&CE Act TNHR&CE Act Trustees shall be in charge of Trustees shall be in charge of the day-to-day administration the day-to-day administration of of the trust and he shall be the trust and he shall be guided guided by the Board of by the Board of Trustees. He Trustees. He shall be the shall be the person entitled to person entitled to receive all receive all monies and other monies and other income of the income of the trust and make all trust and make all disbursements under the orders disbursements under the orders of the Board of Trustees. He of the Board of Trustees. He shall be responsible for the shall be responsible for the performance of the performance of the mandagapadi according to mandagapadi according to usage. He shall be incharge of usage. He shall be incharge of the records and the movable the records and the movable and immovable properties of the and immovable properties of trust including jewels and other the trust including jewels and valuables, subject to such other valuables, subject to such restrictions and conditions as restrictions and conditions as the Board of Trustees might the Board of Trustees might impose with a view to secure impose with a view to secure safety and shall be responsible safety and shall be responsible for the timely submission of for the timely submission of returns and reports to the returns and reports to the appropriate authority under the appropriate authority under the Act and the Rules framed Act and the Rules framed thereunder.
thereunder. (b) ...
(b) ... 5.(a) The Chairman of the
5.(a) The Chairman of the Board of Trustees shall have the
Board of Trustees shall have the power to appoint the servants of
power to appoint the servants the trust, and the later shall
of the trust, and the later shall work under the immediate work under the immediate control and supervision of the control and supervision of the Chairman, Board of Trustees.
______________ https://www.mhc.tn.gov.in/judis Page No 5 of 18 W.P.No.20193 of 2022 Settlement of Scheme under Settlement of Scheme under MHR&CE Act TNHR&CE Act Chairman, Board of Trustees. They shall obey all lawful They shall obey all lawful orders of the Chairman, Board orders of the Chairman, Board of Trustees. He shall have of Trustees. He shall have disciplinary control over them disciplinary control over them and the power to fine, suspend, and the power to fine, suspend, remove or dismiss them for remove or dismiss them for indiscipline, neglect of duty and indiscipline, neglect of duty and disobedience of lawful orders. disobedience of lawful orders. An enquiry shall precede every An enquiry shall precede every order imposing any substantive order imposing any substantive punishment other than a fine on punishment other than a fine on the office holder or servant as the office holder or servant as laid down in the rules issued laid down in the rules issued under Section 56(1) of the Act. under Section 49(1) of the Act. 5. (b) ...
5. (b) ... 6. ...
6. ... 7. ...
7. ... 8. The immovable properties
8. The immovable properties of of the trust shall ordinarily be the trust shall ordinarily be leased out in public auction by leased out in public auction by the Chairman, Board of the Chairman, Board of Trustees, in the manner Trustees, in the manner provided for under the Act provided for under the Act and and the rules framed the rules framed thereunder. thereunder. Lease deeds shall Lease deeds shall be executed be executed by the Chairman, by the Chairman, Board of Board of Trustees in the name Trustees in the name of and on of and on behalf of the trust. behalf of the trust. 9. ...
9. ... 10. ...
10. ... 11. ...
11. ... 12. ...
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Page No 6 of 18
W.P.No.20193 of 2022
Settlement of Scheme under Settlement of Scheme under
MHR&CE Act TNHR&CE Act
12. ...
6. The petitioners purchased the 'B' Schedule property from one of the Trustees on 18.10.2007. They have also obtained a Patta which was later cancelled by the District Officer, Madurai revenue authorities on 07.12.2009 stating that the property was governed by the Scheme decree dated 30.11.1955 and on 04.04.1967.
7. The petitioners have filed application before the Joint Commissioner (ADMN) Hindu Religious and Charitable Endowments Department, the second respondent herein, under Section 63(c) & (d) of the TNHR&CE Act, 1959, to decide whether there was a “specific endowment” and whether the property was dedicated for “a religious endowment”. The said application came to be numbered as O.A.No.16 of 2017 by the Joint Commissioner (ADMN) Hindu Religious and Charitable Endowments Department.
8. In O.A.No.16 of 2017, the Deputy Commissioner/Executive ______________ https://www.mhc.tn.gov.in/judis Page No 7 of 18 W.P.No.20193 of 2022 Officer filed I.A.No.5 of 2018 under Section 151 of C.P.C. In the counter affidavit, it was stated that the main petition has been filed under Section 64(5)(a) of the Tamil Nadu Act 22 of 1959. After considering the arguments advanced by the learned counsel for the petitioners and the respondents and the documents filed before the Joint Commissioner, the Joint Commissioner/the second respondent by his order dated 09.11.2018 dismissed the Original Application in O.A.No.16 of 2017 filed by the petitioners and allowed the Interlocutory Application in I.A.No.5 of 2018 stating that the petitioner has no locus standi. Aggrieved by the aforesaid order of the Joint Commissioner/the second respondent, the petitioners preferred an appeal before the first respondent in A.P.No.24 of 2019 under Section 69 of the TNHR&CE Act, 1959.
9. By the impugned order dated 16.06.2022, the first respondent has rejected the appeal filed by the petitioners and affirmed the decision of the Joint Commissioner dated 09.11.2018 in I.A.No.5 of 2018 in O.A.No.16 of 2017. The operative portion of the impugned order reads as under:-
10. In the settlement deed the settlers had clearly ______________ https://www.mhc.tn.gov.in/judis Page No 8 of 18 W.P.No.20193 of 2022 stated that:-
@nkw;go K:d;W jh;k';fisa[k; rh!;tjkha;
vd;bwd;iwf;Fk; elj;jp tut[k/; nkw;go jh;k';fisa[k; mjd; brhj;Jfisa[k; jh';fSk; j';fs; thhpRfSk; vt;tpjkhd <L. xj;jp. fpiuak; Kjyhd ghuhjPd';fs; bra;ahky; nkw;go j';fis elj;jp tu ntz;oaJ@/ So, the properties are inalienable. But the trustees had sold the property against the wishes of the settlers.
11. The trustees are entitled to receive the honour during the mandagapadi. They have right to manage, maintain the properties and to perform the endowments created in the documents. They are not given any personal interest on the endowed properties.
12. The object of the Trust is to perform the Mandagapadi to the Idol of Arulmighu Kallalagar. So, the beneficiary is Lord Kallalagar. The prasadam offered to Kallalagar is distributed to the Archagar, devotees etc., So, the beneficiaries are Lord Kallalagar and devotees. So, it is an endowment created for specific purpose of performing mandagapadi.
13. The said specific endowment was created in the year 1923 and continuing as specific endowment almost for a century. As the petitioners are neither the Trustees of the endowment nor connected in any way with the endowment, have no right to dispute its character under the guise of purchaser of the property. ______________ https://www.mhc.tn.gov.in/judis Page No 9 of 18 W.P.No.20193 of 2022
14. As the character and nature of the specific endowment has been already admitted and settled in several proceedings they have no locus standi to dispute the same. Further, the decision relied upon by the appellants did not apply to their case.
For the reasons stated supra, the Joint Commissioner has rightly dismissed the O.A. filed by the appellants as not maintainable and it does not warrant any interference. Accordingly the Appeal is dismissed as devoid of merits."
10. The learned Senior counsel for the petitioners submits that there was no determination on the issues flagged by the petitioners before the Joint Commissioner under Section 63(c) & Section 63 (d) of the TNHR&CE Act, and without considering the same, the Interlocutory Application in I.A.No.5 of 2018 filed by the fourth respondent has been allowed and thereby unsuiting the petitioners.
11. It is submitted that the alternate remedy under Section 70 is not available. It is further submitted that under Section 108 of the TNHR&CE Act also bars a civil remedy.
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12. It is submitted that unless appropriate orders are passed under Section 63(c) & (d) of the TNHR&CE Act by the Joint Commissioner, the petitioners will not be in a position to get the order cancelling the Patta on 07.12.2009 by the District Revenue Officer, Madurai reversed.
13. In this connection, the learned Senior counsel for the petitioners has specifically relied on the following decisions of the Hon'ble Supreme Court and that of this Court to state that an endowment for the conduct of worship cannot be specific endowment and the trust is only a private trust:-
(i) Sri Kallalagar Soudaraja Perumal Chitra Poornami Mandakapadi Trust and others Vs Maruthamamalai, 1959 (72) LW 646.
(ii) State of Madras Vs Kunnakudi Melamatam and others, MANU/SC/0373/1965.
(iii) S.Rangayya Gounder (died) and others Vs Karuppa Naicker and others, 1971 84 LW 137.
(iv) The Commissioner, HR&CE(A) Department Vs P.Pauliah, MANU/TN/0858/1995.
(v) Angamuthu Vs K.Pugazhendi and others, 1999 (1) LW 415.
(vi) Molasiyar Nattugounder Samugham, Represented by its Dharmakartha Kandasamy, Namakkal District Vs The Commissioner, HR&CE Department and others, 2013 (4) LW 532.” ______________ https://www.mhc.tn.gov.in/judis Page No 11 of 18 W.P.No.20193 of 2022
14. It is further submitted that even as per the Trust Settlement Deed dated 23.04.1923, there is no reference to dedication of all the properties for any religious purpose/religious charity so as to come within the purview of the definition of specific endowment under Section 6(19) of the TNHR & CE Act. It is further submitted that unless the issue flagged by the petitioners is decided, the petitioners cannot be non-suited/unsuited.
15. It is therefore submitted that the impugned order deserves to be quashed by allowing this writ petition and the case be remitted back to the second respondent to pass appropriate orders under Section 63(c) &
(d) of the TNHR&CE Act.
16. Opposing the prayer, the learned Additional Government Pleader for the first to third respondents would submit that the impugned order is well reasoned and requires no interference. He has defended the impugned order by placing reliance on the statements of one of the said Trustee who appears to have sold the property to the petitioners wherein, the trustee has also admitted that there was a specific endowment by the ______________ https://www.mhc.tn.gov.in/judis Page No 12 of 18 W.P.No.20193 of 2022 widows of Ponnu Sankaran Pillai family in terms of Trust Settlement Deed dated 23.04.1923 registered as Doc.No.1922 of 1923.
17. It is submitted that a decision has been arrived on the issue relating to specific endowment in Paragraph 13 of the impugned order passed by the first respondent in A.P.No.24 of 2019 under Section 69 of the TNHR &CE Act. If advised, the petitioners are entitled to file a statutory appeal under Section 70 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 as there is no impediment.
18. It is further submitted that even otherwise on facts and on a reading of the Trust Settlement Deed dated 23.04.1923, it is clear that there was a “specific endowment” and that the members of the Ponnu Sankaran Pillai family were enjoined to not to alienate any of the Trust property. It is submitted that there is a negative covenant in the scheme. It is submitted that there is a negative covenant in the Trust Deed and the Scheme Decrees.
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19. I have considered the arguments advanced by the learned Senior counsel for the petitioners and the learned Additional Government Pleader for the respondents. There is no doubt that the property was dedicated by its founders by a Trust Settlement Deed dated 23.4.1923 for a specific endowment. This was also duly recognised under the scheme framed under the provisions of the Madras Hindu Religious and Charitable Endowments Act, 1951 as it stood then and later under Hindu Religious and Charitable Endowments Act, 1959.
20. It was also not open for the petitioners to feign ignorance that the property which was specifically endowed for the religious purpose was not a property governed by the provisions of the Hindu Religious and Charitable Endowments Act, 1949.
21. There is a specific bar under the provisions of the Hindu Religious and Charitable Endowments Act, 1959 on the Trustees from alienating the Trust property. The petitioners have purchased the property contrary to the provisions of the Hindu Religious and Charitable ______________ https://www.mhc.tn.gov.in/judis Page No 14 of 18 W.P.No.20193 of 2022 Endowments Act, 1959 and Trust Settlement Deed and Sale Deed. The Revenue Authorities were therefore justified in cancelling the Patta which was issued earlier in favour of the petitioners on the strength of the Sale deed.
22. To get over the cancellation of the Patta by the Revenue Authority, the petitioners have wrongly invoked Section 63 (c) and Section 63 (d) of the Hindu Religious and Charitable Endowments Act, 1959 in a bid to legitimise the purchase made contrary to the provisions of the Hindu Religious and Charitable Endowments Act, 1959. It was a clear misadventure which has failed.
23. It was not open for the petitioners to set the agenda to deflect the core issue by wrongly invoking the jurisdiction of the authorities under the provisions of the Hindu Religious and Charitable Endowments Act, 1959.
24. To cut their loss, the only option available to the petitioner is to recover the amount from their vendors which they may have paid to the ______________ https://www.mhc.tn.gov.in/judis Page No 15 of 18 W.P.No.20193 of 2022 trustee who executed the sale deed in their favour subject to limitation.
25. There is also no violation of principles of natural justice in the order passed by the second respondent Joint Commissioner in I.A.No.5/2018 Order in O.A.No. 16/2017.
26. Further, the order of the Joint Commissioner as upheld by the Commissioner are both well reasoned. The Commissioner has indeed also concluded that there was “specific endowment” almost for a century.
27. Further, Section 108 only bars suits relating to the administration or management of the trust, i.e. proceedings against the trustee. The bar under this Section would not apply when the proceedings are against the third party who is in possession of the property in which the trust is interested as held in Vanjipuram Venkatacharyulu vs. Sri Rajah Vasireddi, AIR 1935 Mad 964.
28. Petitioners were neither connected with the endowment, ______________ https://www.mhc.tn.gov.in/judis Page No 16 of 18 W.P.No.20193 of 2022 endowed property as its trustees nor with the family of the Trustees. The petitioners purchased the property which is forbidden under the law and therefore cannot expect any relief.
29. That apart, the petitioners have an alternate remedy under section 70 of the Hindu Religious and Charitable Endowments Act, 1959.
30. In my view the jurisdiction of the this Court under article 226 has been wrongly invoked to prolong the longevity of the litigation in a bid to legitimise their wrongful title over the endowed property.
31. There are no merits in the present writ petition. Therefore, this writ petition stands dismissed. Consequently, connected miscellaneous petition is closed. No costs.
18.08.2022 Index : Yes/No Internet : Yes/No rgm/kkd C.SARAVANAN,J.
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1.The Commissioner H.R. & C.E. Admn.Department, 119, Uthamar Gandhi Salai, Nungambakkam, Chennai – 34.
2.The Joint Commissioner, H.R.& C.E.Admn.Department, Madurai.
3.The Deputy Commissioner/Executive Officer, A/m Kallalagar Thiru Koil, Alagar Koil, Madurai.
Pre-delivery Order in W.P.No.20193 of 2022 18.08.2022 ______________ https://www.mhc.tn.gov.in/judis Page No 18 of 18