Madras High Court
V.R.Maragatham vs The Commissioner on 17 July, 2012
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 17.07.2012 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.11981 of 2012 and M.P.No.1 of 2012 V.R.Maragatham .. Petitioner Vs. 1.The Commissioner, Hindu Religious and Charitable Endowments, Chennai-34. 2.The Joint Commissioner, Hindu Religious and Charitable Endowments, Coimbatore-18. 3.The Assistant Commissioner / Executive Officer, Hindu Religious and Charitable Endowments, Coimbatore-18. .. Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of mandamus forbearing the respondents, their men and agents from interfering with the lands measuring 9.90 acres in S.F.No.109, Vadavalli village, Coimbatore for which ryotwari patta No.18 was granted to the petitioner on 30.09.1968 under the Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act, 1963. For Petitioner : Mr.R.Yashod Vardhan, SC for Mr.M.Ramalingam For Respondents : Mr.R.Kannan, GA(HR&CE) - - - - ORDER
This writ petition is filed by the petitioner seeking for a direction to the respondents from interfering with the lands measuring 9.90 acres in S.No.109, Vadavalli Village, Coimbatore for which ryotwari patta No.18 was granted to the petitioner on 30.09.1968 under the Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act, 1963.
2.When this writ petition came up on 26.4.2012, this court ordered notice on admission and directed Mr.S.Kandasamy, learned Special Government Pleader for the HR&CE Department to take notice. On taking notice, the learned Special Government Pleader filed a counter affidavit sworn to by the third respondent Assistant Commissioner-cum-Executive Officer, HR&CE, Coimbatore, dated 23.06.2012.
3.Heard the arguments of Mr.R.Yashod Vardhan, learned Senior Counsel representing Mr.M.Ramalingam, learned counsel appearing for the petitioner and Mr.R.Kannan, learned Government Advocate for HR&CE appearing for the respondents.
4.It is the stand of the petitioner that S.No.109 measuring 9 acres of dry land is an enfranchised iruvaram inam granted and confirmed to one Kalidasan in T.D.No.37/1863 for the support of Thanneer Pandal at Vadavalli so long as he continues the performance of the service at Thanneer Pandal. The inam tenure of these lands stood abolished consequent upon the introduction of the Tamil Nadu Minor Inam (Abolition and Conversion into Ryotwari) Act, 1963 and they have vested in the Government free of all encumbrances under Section 11 of the Act. The petitioner's husband filed an application before the Tahsildar, Gobichettipalayam. He had stated that the land was in continuous and exclusive possession of his wife and her predecessor-in-title for more than 60 years and that the land was confirmed in favour of Rangasamy Gounder, the late grandfather of his wife in 1903 in a suit brought against him by Kalidasan Gounder in O.S.No.219 of 1908, dated 14.09.1909 before the District Munsif Court, Coimbatore. Before the said Rangasamy Gounder, his wife's grandfather came into possession of the land and it was in continuous enjoyment and possession in the year 1894 by one Ayiammal, who had adopted Rangasamy gounder as her son. A copy of the lease deed was also produced by him showing that Ayiammal had leased out the land to one Kuppusamy Gounder of Vayipalayam.
5.It was further contended that Thanneer Pandal at Vadavalli was maintained by his wife and his mother-in-law and this will continue to be maintained. In the light of these facts and certain documents produced by the petitioner, the Tahsildar held that it is an enfranchised Dharmadayam inam and it was confirmed permanently to Kalidasan for supporting the Thanneer Pandal at Vadavalli. It was a grant burdened with conditions of service, i.e., continuing the performance of the charity of Thanneer Pandal. Therefore, he had granted ryotwari patta in respect of the land subject to conditions of continuing the charity of Thanneer Pandal at Vadavalli village, by an order dated 30.09.1968.
6.Thereafter, it transpired that the petitioner wrote a letter to the Commissioner, HR&CE stating that she had sold the land in S.No.109 and plotted out as layouts and sold it for the purpose of feeding devotees of Sri Arulmighu Subrmania Swamy Temple, Marudamalai. She has been spending more than Rs.60,000/- and also doing several charity works. She had sold the property without the permission during the year 1983. Therefore, she is willing to deposit the cost of the value of the land as a permanent deposit. She wanted the Commissioner of HR&CE to recognize her sale. It also transpired that one Sri Gujan Property Developer, represented by its Partner K.Maruthachalam and one T.Ramaraju filed two writ petitions before this court being W.P.Nos.26250 and 26025 of 2011 seeking to set aside the order dated 13.5.2011 passed by the third respondent who had directed the registering authorities not to register the land which belonged to temple authorities. Those writ petitions were disposed of by a common order dated 18.11.2011 in terms of the earlier order dated 20.10.2011 in W.P.No.19622 of 2011. The Registering Authorities were directed to register the land and return the documents without insisting upon a no objection certificate. At the same time, in that order it was also made clear that the direction to register the documents will not confer any title on the petitioners in any further proceedings. Based upon the sale, the parties have applied to the revenue department for the grant of pattas in respect of individual purchasers and pattas have also been granted. The petitioner further informed that the charity of Thanneer Pandal is still being carried out by her. Thereafter, she moved this court with the present writ petition.
7.In the counter affidavit filed by the third respondent, it was stated that the property in question is an endowment property covered by the provisions of the Tamil Nadu Hindu Religious and Charitable Endowment Act. The said property was given for religious purpose for maintaining the Thanneer Pandal for the benefit of beneficiaries (Hindu devotees) during Thaipoosam festival to be held annually. The service holder has no authority to dispose of the property except with prior permission from the competent authority under Section 34 of the Tamil Nadu HR&CE Act. Therefore, since the property has been sold without any authority and also no permission was obtained, the registration department was given an intimation not to register the property. The petitioner herself had sent a representation that the suit property was sold and sought for rectification. The property was granted as Dharmadayam for the purpose of public utility or public service. The petitioner's predecessor Kalidasan was only the service holder and he had no right to dispose of or sell the property. Hence the question of selling the property will not arise. Pattas granted to them under Section 8(2)(ii) and 8(5) read with Section 21(7)(a) of the Minor Inam Act, 1963 were conditional pattas. The Act itself imposes condition that in the case of a minor inam held immediately before the appointed day by an individual on condition of rendering service to charitable institution, the grant of ryotwari patta under Section 8(1) or 8(2) shall be subject to the provisions of section 21. Section 21 provides an opportunity to the service holder by way of an option either to pay an amount fixed by the revenue authorities and be discharged from the condition of such service or to hold the land and continue to render service subject to the provisions contained in the other provisions of the Act.
8.Even assuming that the ryotwari patta was given by the settlement officer, it was granted subject to the petitioner's performance of the Thanneer Pandal charity at Vadavalli as a service holder and the condition prescribed under Section 21 of the Minor Inam Act, 1963 will squarely apply. They have no right or power to dispose of or sell the property at their own decision without permission from the competent authority. The entries made in the Inam Fair Register of 1863 in title deed No.37, dated 16.4.1863 clearly showed that it was endowed only for charitable purpose and the original service holder Kalidasan was only the service holder endowed the duty of performance of Thanneer Pandal. The said property was given to him in lieu of remuneration for the services rendered. Even earlier, in the writ petitions filed by the subsequent purchasers and developer of the property, this court did not confer any title. The petitioner's request for the grant of no objection certificate to ratify her illegal actions cannot be countenanced. In such circumstances, the paramount consideration was the interest of the institution. The petitioner had willfully and mischievously committed breach of trust which is punishable. The petitioner's attempt to claim that she is doing Thanneer Pandal service is clearly to mislead the court. She hardly spent Rs.10,000/- for Thanneer Pandal, where as she had clandestinely sold the trust property for several crores of rupees for personal gain.
9.In this context, a reference was made to a judgment of the Supreme Court in A.A. Gopalakrishnan v. Cochin Devaswom Board, reported in (2007) 7 SCC 482 and attention was drawn to paragraph 10 of the said judgment which reads as follows :
"10.The properties of deities, temples and Devaswom Boards, require to be protected and safeguarded by their trustees/archakas/shebaits/employees. Instances are many where persons entrusted with the duty of managing and safeguarding the properties of temples, deities and Devaswom Boards have usurped and misappropriated such properties by setting up false claims of ownership or tenancy, or adverse possession. This is possible only with the passive or active collusion of the authorities concerned. Such acts of fences eating the crops should be dealt with sternly. The Government, members or trustees of boards/trusts, and devotees should be vigilant to prevent any such usurpation or encroachment. It is also the duty of courts to protect and safeguard the properties of religious and charitable institutions from wrongful claims or misappropriation."
10.Mr.R.Yashod Vardhan, learned Senior Counsel relied upon a judgment of the division bench of this court vide judgment in The State of Madras by the Secretary, Revenue Department, Madras and another Vs. The Urumu Seshachaiam Chettiar Charities, Tiruchirapalli, by its Board of Trustees and others reported in 1960 (II) MLJ 591. The division bench held that for the purpose of religious charitable endowment, unless the benefit of endowment is confined wholly to Hindus, it would not be a charitable endowment as defined under the Act. But in that case, the division bench of this court dealt with the exercise of finding out the true intention of the trust deed and thereafter gave an opinion that unless it is exclusively endowed by the Hindus, it cannot be held to be charitable endowment coming under the Act. In this context, by giving an example of establishing Water Pandal, in page 595, the division bench had observed as follows :
"....The learned Advocate-General pointed out that normally no Hindu would contemplate exclusion of members of other communities from the benefit of the public charity familiarly known as a Water Pandal, if he were founding such a public charity. That was given only as an example. Establishment of a Water Pandal charity may be establishment of a public charitable endowment. But it is not every public charitable endowment that is brought within the scope of Act XIX of 1951. Every public charitable endowment founded by a Hindu does not become a Hindu charitable endowment. The mere fact that the founder was a Hindu is not enough even to make a trust or endowment a charitable endowment as defined by section 6(4) of the Act. Certainly it is not enough to make it a Hindu public charitable endowment. To bring a public charitable endowment within the scope of section 3 of the Act it is necessary to establish first that it is a Hindu charitable endowment. It will not be a Hindu charitable endowment, if the benefit of the endowment can be shared as of right by members of the public other than Hindus."
11.That question is academic in the present case. Because even as per the admission of the petitioner in a letter to the department, she wanted to ratify the act of selling the property and informed that she continues to render the said charity for the benefit of devotees and that Thanneer Pandal was established only for the purpose of Hindu devotees who throng to worship Sri Arulmigu Subramania Swamy, Marudamalai and they will have to pass through Vadavalli village to go to the temple.
12.The learned Senior counsel also referred to a judgment of this court in The State of Madras Vs. Mehadeva Iyer and others reported in (1988) 1 MLJ 128, in which it was held that a choultry cannot be said to be the Hindu charitable endowment. There also the question came regarding the nature of grant made for the public purpose.
13.The conduct of the petitioner cannot be appreciated because having sold the property without any authority and without prior permission of the department, it is not open to her to contend to the contrary.
14.It is also necessary to refer to another judgment of the Supreme Court where the grant was given for the purpose which was sought to be used for appropriating the land contrary to the purpose for which it was endowed. The Supreme Court in Joint Commissioner, HRCE, Admn. Deptt. v. Jayaraman reported in (2006) 1 SCC 257 in paragraphs 7 to 12 had observed as follows:
"7.It is seen that the claimants had got themselves appointed as hereditary trustees by applying under Section 63(b) of the HR&CE Act. They could not thereafter shed their character as trustees of the temples holding the lands belonging to the temples at a subsequent stage at least without impleading the HR&CE Department and the deities and without getting a valid adjudication of their right over the properties. It is clear that in spite of the necessity for impleading the HR&CE Department being pointed out, the claimants made no attempt to implead the HR&CE Department either before the Settlement Tahsildar or before the District Judge and, consequently, the orders passed by the Settlement Tahsildar and by the District Court were clearly illegal and not binding on the deities or the HR&CE Department. The claimants had, in fact, acted totally without bona fides in an attempt to corner the properties for themselves or at least to make undue gains for themselves by selling the properties. Such action would certainly not bind the deities or the HR&CE Department. The High Court, representing the sovereign as parens patriae ought to have come down on the respondents herein and ought to have issued directions for the protection of the properties.
8.The grant was of government land. The grant was, even going by the case of the claimants, in favour of persons who were acting as poojaris of the temple, for the purpose of utilising its income for poojas and maintenance of the temple. Even in the extract of the fasli register, it is shown that the registered name of the inamdar is poojaris of Mariamman and Bhagavathiamman Temples and the enjoyers as Veerana Pandaram and Arunachalam Chetty. The relation between the inamdar and the enjoyer is shown as devadayam and in the column regarding details of inam, it is shown as for poojas to God (Sasvatham) and in the column relating to details of endowment, it is shown that the income of the land is used by the poojaris for pooja and maintenance of the temples. Prima facie, government land had been dedicated to the temples by way of grants by the Government. Even if the income therefrom had alone been dedicated to the temples, it would still be a religious trust or endowment and certainly not a private trust to which the Trusts Act, 1882 would apply. Section 1 of the Trusts Act, 1882 itself provides that nothing contained therein applies to public or private religious or charitable endowments. The endowment here was certainly not a private endowment since there is no case that the temples are private. The endowment was for a religious purpose, the conducting of poojas in the temples and the maintenance of the temples. Therefore, endowment was of public property for the benefit of public temples and the poojaris constituted the trustees. They were trustees imposed with the obligation of spending the income from the properties, for the poojas and maintenance of the temple. It was clearly a case of a public religious endowment and by virtue of Section 1 of the Act, the Trusts Act, 1882 would have no application. Learned counsel for the respondents tried to argue that the application under Section 34 of the Trusts Act, 1882 was maintainable but could not argue that these were private trusts by reference to any relevant material. The lands were government lands and the Government had dedicated the properties or the income therefrom for the upkeep of public temples. By no stretch of imagination, can it be held that it was a private trust coming within the purview of the Trusts Act, 1882. The District Judge has, therefore, clearly acted without jurisdiction in entertaining the application under Section 34 of the Trusts Act, 1882. On this short ground, it has to be held that the order passed by the District Judge in the application filed under Section 34 of the Act granting permission to the claimants to sell the properties is one without jurisdiction. The High Court was completely in error in brushing aside this vital aspect while considering whether the District Judge had acted within jurisdiction in entertaining the application under Section 34 of the Trusts Act, 1882.
9.The HR&CE Act applies to all Hindu public religious institutions and endowments. This is clear from Section 1(3) of that Act. A religious endowment or endowment is defined in Section 6(17) of the Act. It reads:
6. (17) religious endowment or endowment means all property belonging to or given or endowed for the support of maths or temples, or given or endowed for the performance of any service or charity of a public nature connected therewith or of any other religious charity; and includes the institution concerned and also the premises thereof; but does not include gifts of property made as personal gifts to the archaka, service-holder or other employee of a religious institution;
Explanation.(1) Any inam granted to an archaka, service-holder or other employee of a religious institution for the performance of any service or charity in or connected with a religious institution shall not be deemed to be a personal gift to the archaka, service-holder or employee but shall be deemed to be a religious endowment.
Explanation.(2) All property which belonged to, or was given or endowed for the support of a religious institution, or which was given or endowed for the performance of any service or charity of a public nature connected therewith or of any other religious charity shall be deemed to be a religious endowment or endowment within the meaning of this definition, notwithstanding that, before or after the date of the commencement of this Act, the religious institution has ceased to exist or ceased to be used as a place of religious worship or instruction or the service or charity has ceased to be performed:
Provided this Explanation shall not be deemed to apply in respect of any property which vested in any person before 30-9-1951, by the operation of the law of limitation. Section 6(18) defines a religious institution as meaning a math, temple or specific endowment. Going by the definition it is clear that the endowment in question is governed by the HR&CE Act. Even if one were to accept the case of the claimants that it was an inam granted to an archaka, the same would come within the definition of religious endowment or endowment under the Act in view of Explanation (1) thereto. Thus, it is clear that the endowment, gift or donation was governed by the HR&CE Act. It is in this context that we have to appreciate the effect of the conduct of the claimants in getting themselves appointed as trustees by moving under Section 63(b) of the Act. Any alienation would, prima facie, be hit by Section 34 of the Act and even if the case of the claimants were to be taken at face value, the transaction would be hit by Section 41 of the Act. In either case, the permission contemplated by the respective sections was a must and the District Court lacked jurisdiction to give the permission for sale on an application under Section 34 of the Trusts Act, 1882, that too, without issuing notice to and hearing the authorities under the HR&CE Act.
10.The claimants had themselves applied under Section 63(b) of the HR&CE Act and had got themselves appointed as trustees. They had themselves held out and accepted that the HR&CE Act applies to the trust concerned. There is no case that the temples are not public temples and are not under the control of the HR&CE Department in terms of the HR&CE Act. At best, the contention is only that the lands were conveyed in trust not to the temples or to the deities, but to the poojaris of the temples but with an obligation to utilise the income from the properties for the poojas and the upkeep of the temples. This certainly brought in the HR&CE Act and the control of the authorities thereunder, even in respect of the administration of the trust by the claimants. The claimants were really estopped from raising a contention that the HR&CE Act had no application or that they did not need the permission of the Commissioner under the Act for alienation either under Section 34 or under Section 41 of the HR&CE Act. The claimants were disentitled to bypass the provisions of the HR&CE Act and to secure an order from the District Judge without notice to the HR&CE Department by moving an application under Section 34 of the Trusts Act, 1882. The order thus obtained cannot bind the trust or the properties, or the deities or the HR&CE Department. Similarly, no reliance can be placed on the so-called patta obtained by the claimants from the Settlement Tahsildar without notice to the HR&CE Department.
11.It was contended that the purchase price had been deposited in a fixed deposit and so long as there is no failure on the part of the claimants to perform the services which they are liable to perform, there is no necessity to interfere with the transaction of sale effected by them. It is seen that going by the prevalent valuation and the market value as reported, the lands were sold for a meagre price or that the sale deeds indicated only a meagre price as consideration for the same with all that it implies. Such a transaction is clearly seen to be not in good faith. That the District Court proceeded to accept the value for which the property was being sold even without making an enquiry into the market value that the properties would have fetched at the relevant time while giving the permission for the sale, is shocking. The jurisdiction under Section 34 is advisory. The court should have satisfied itself of the need for sale and the propriety of the sale proposed. The mere pleas that it was difficult to protect the property and that there was only meagre income therefrom were by themselves not grounds to direct or permit the sale.
12.It is seen that there has been a clear attempt by the claimants to overreach the deities and the authorities under the HR&CE Act, while managing the properties dedicated for the purposes of the temple, properties granted and managed by them in their capacities as poojaris, for the maintenance of the temples. The attempt has to be deprecated."
15.In the light of the above, this court do not think any case is made out for entertaining the writ petition. Accordingly, the writ petition will stand dismissed. No costs. Consequently connected miscellaneous petition stands closed.
17.07.2012 Index : Yes Internet : Yes vvk To
1.The Commissioner, Hindu Religious and Charitable Endowments, Chennai-34.
2.The Joint Commissioner, Hindu Religious and Charitable Endowments, Coimbatore-18.
3.The Assistant Commissioner / Executive Officer, Hindu Religious and Charitable Endowments, Coimbatore-18.
K.CHANDRU, J.
vvk ORDER IN W.P.No.11981 of 2012 17.07.2012