K.Kuppusamy vs The Commissioner

[Cites 18, Cited by 0]

Madras High Court

K.Kuppusamy vs The Commissioner

Bench: R.Subramanian

        

 

IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on
24.08.2018
Delivered on
  05.10.2018

CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN

S.A.No. 530 of 2008


K.Kuppusamy		
Manager,
Ellappalayam Soorikattu Iyyan @
Semmanda Gounder Vazhipattu Sabai
otherwise also called as 
Arulmigu Ellappalayam Kavadi Kattalai.			..Appellant
vs.

1. The Commissioner, H.R.& C.E.
    No.119, Uthamar Gandhi Salai,
    Chennai 34.

2. The Joint Commissioner, H.R. & C.E.
     Dr.Balasundaram Road,
     Coimbatore 18.

3. The Assistant Commissioner, H.R.& C.E.
    Administration Department,
    Anoor Amman Complex, Sathy Road,
    Erode.		  	    					 ... Respondents

Prayer: Second Appeal filed under Section 100 of the Civil Procedure Code against the Judgment and Decree in A.S.No.72 of 2007 dated 27.12.2007 on the file of Fast Track Court III, Dharapuram confirming the decree and judgment of the Sub Court, Dharapuram in OS No.93/2005 dated 25.07.2007.

		For Appellant	    : Mr.K.M.Vijayan, Senior Counsel 
                                                        for M/s. La Law

		For Respondents	    : Mr.S.Jaganathan
                                                        Government Advocate (CS)

J U D G M E N T

The plaintiff in OS No.93 of 2005 is the appellant. The suit was filed for a direction to the defendants to refund a sum of Rs.72,600/- with interest 12% from the date of plaint till date of realization, declaring that the defendants are not entitled to collect from the plaintiff endowment, the annual contribution on the income of the plaintiff as Maathu Panam (khj;J gzk;), under Section 92(1) of the Tamil Nadu Hindu Religious and Charitable Endowments Act 1959, from the fasli year 1414 and for any of the future years, granting a consequential perpetual injunction restraining the defendants from collecting from the plaintiff endowment any annual contribution as provided under Section 92 (1) of the said Act and for the costs of the suit.

2. According to the plaintiff, the Sivanmalai Arulmigu Subramaniya Swamy Temple at Kangayam is an ancient temple, which is under the control of the Tamil Nadu Hindu Religious and charitable Endowments Board. Long ago one Semmanda Gounder, who lived in Ellappalayam hamlet of Erisinampalayam, Dharapuram Taluk, who was pious devotee of the Sivanmalai Arulmigu Subramaniya Swamy, was leading a life of a Sanyasi and he was referred to by the people of the locality as Soorikattu Iyyan. After his demise his mortal remains were buried in his patta land and a samathi was constructed over the same. The descendants of the said Semmanda Gounder have been performing Guru Poojas at the Samathi.

3. On Thai Poosam day of every Tamil Year, the descendants used to take Kavadi to the Murugan Temple at Sivanmalai and on the next day, they offered Annathanam in their private patta land at a distance of about one furlong towards west from the foothills of the hillock on which the temple is situate. The devotees who have food, used to offer donations of varying amounts, according to their discretion. These donations are collected by spreading a cloth inside a small room adjacent to the site where the Annathanam is offered and the donations were deposited on the cloth. The donations so collected are known as Maathu Panam.

4. According to the plaintiff, who is the Manager of the Ellapalayam Soorikattu Iyyan @ Semmanda Gounder Vazhipattu Sabai also called as Arulmigu Ellappalayam Kavadi Kattalai, the legal representatives of the Soorikattu Iyyan comprising of about 32 families, nominate four prominent persons among themselves to be in charge of the performance of the Annathanam. The devotees who take food at the Annathanam are given Viboothi Prasatham. The plaintiff would contend that on very many occasions the donations received as Mathu Panam will not even be sufficient to meet the expenses of the Annathanam. On such occasions, the expenses are met out of the income derived from the landed property purchased by the legal representatives of Soorikattu Iyyan. It is further averred that the Executive Officer of the Sivanmalai Temple filed an application in OA No.59 of 1974, before the Joint Commissioner, HR & CE, Coimbatore, under Section 63 of HR & CE Act, seeking a declaration that the performance of Annathanam is an endowment belonging to the temple. The said application was allowed by the 2nd defendant, as against the said order passed by the 2nd defendant the plaintiff had filed an Appeal before the 1st defendant, namely, the Commissioner, HR & CE Endowments Board, Chennai. The Appeal was dismissed on 09.02.1982 by the Commissioner, confirming the order of the Joint Commissioner, Coimbatore.

5. The said order was challenged by the plaintiff in OS No.211 of 1983 on the file of the Principle Sub Court, Erode. The Principle Sub Court, Erode, by its judgment and decree dated 13.01.1984, while confirming the orders of the Authorities, namely the 1st and 2nd defendants, however, held that the Annathanam should be performed by the 32 families, who are descendants of Semmanda Gounder and it is a specific endowment. It is also concluded that the Department will have the right to supervise and audit the income and expenditure accounts of the Kattalai.

6. The plaintiff would further contend that despite the said finding the defendants have been demanding and collecting contribution under Section 92 (1) of the HR & CE Act, at 7% of the income as annual contribution for the past several years. According to the plaintiff, the defendants have no right to demand and collect any contribution from the plaintiffs Endowment. According to the plaintiff, the defendants have collected the sum of Rs. 23,000/- on 20.01.2003, Rs.24,000/- on 07.02.2004 and a sum of Rs.25,600/- on 27.01.2005. A demand notice has also been issued by the defendants seeking payment of Rs.40,318/- towards Annual Contribution as well as Audit Fees.

7. Contending that inasmuch as, Sections 45 to 58 of the Tamil Nadu Hindu Religious & Charitable Endowments Act, do not apply to a specific endowment, the plaintiff would submit that the defendants have no right to collect contribution and has sought for refund of the contribution paid for 3 years prior to the suit. The plaintiff would also contend that in view of the judgment in OS No.211 of 1983, the defendants do not have a right to collect contribution from the plaintiff. On the above contentions, the plaintiff sought for a decree as stated supra.

8. The suit was resisted by the defendants contending that once the activities of the plaintiff in collecting money while doing the Annathanam have been held to be a Specific Endowment, the same would be a Religious Institution within the meaning of Section 6(18) of the Tamil Nadu Hindu Religious and Charitable Endowments Act 1959. Once it becomes a Religious Institution, Section 92(1) of the Act, empowers the department to demand and collect contribution from persons in-charge of such Specific Endowment. Since the finding that the plaintiff Kattalai constituted a Specific Endowment in OS No.211 of 1983, has been confirmed by this Court in AS No.237 of 1984, the plaintiff cannot now be heard to contend that the department does not have the power to levy and collect contribution, under Section 92 of the Act. Inasmuch as the right of the department to supervise the functions of the Kattalai has been recognized, the department has got every right to demand and collect the annual contribution along with Audit Fees. On the above contentions, the defendants sought for the dismissal of the suit.

9. The Trial Court, namely the Subordinate Judge, Dharapuram, who tried the suit after framing necessary issues, concluded that in view of the judgment in OS No.211 of 1983, the character of the Institution as a Specific Endowment cannot be disputed. Once the institution or the Kattalai is found to be a Specific Endowment and in view of the definition of the term Religious Institution under Section 6(18) of the Act 22 of 1959, it would automatically be deemed to be a Religious Institution and hence the Department had the power and the authority to levy contribution and Audit Fees under Section 92(1) of the Act. On the said finding, the learned Subordinate Judge dismissed the suit.

10. Aggrieved the plaintiff preferred an Appeal in AS No.72 of 2007 on the file of the Additional District Court, Dharapuram. The learned Additional District Judge, who heard the appeal concurred with the findings of the Trial Court and dismissed the appeal. Aggrieved the plaintiff has come forward with the above Second Appeal.

11. Notice regarding admission was ordered on 15.04.2008 and pursuant to the notice, the respondents have entered appearance through counsel. Upon hearing the arguments of Mr. K.M.Vijayan, learned Senior Counsel appearing for the appellant, I had admitted the Appeal and framed the following question of law on 06.07.2018:

Whether the character of endowment is determined by the Civil Court as a specific endowment as one falling within the category of religious endowment, whether Section 92 of the HR & CE Act, 1959, can be applied against the plaintiff endowment?

12. I have heard Mr.K.M.Vijayan, learned Senior Counsel appearing for the appellant and Mr.S.Jaganathan, learned Government Advocate (Civil side) appearing for the respondents on the question of law framed.

13. Mr.K.M.Vijayan, learned Senior Counsel appearing for the appellant would contend that both the Courts below were not right in concluding that the Civil Court in OS No.211 of 1983 had held that the plaintiff Kattallai is a Specific Endowment and therefore, it will automatically be treated as a Religious Institution. Mr.K.M.Vijayan would submit that the very concept of the endowment requires a dedication of a certain fund or a property and the income out of such fund or property should be used for certain Religious purposes in order to constitute an endowment.

14. Pointing out that there is no such fund or property dedicated to the plaintiff Katallai and the Annathanam as such is being performed by the legal heirs of the late Soorikattu Iyyan and whatever money that is collected as Mathu Panam/offering of the devotees, who participate in the Annathanam cannot be termed as a Specific Endowment for the purpose of Annathanam. Therefore, according to Mr.K.M.Vijayan, learned Senior Counsel appearing for the appellant, the Courts below were not right in concluding that the Kattalai is a Specific Endowment within the meaning of Section 6(19). Drawing inspiration from the definition of Specific Endowment under Sub Section 19 of Section 6 of the Act, which reads as follows:

Section 6 Sub Section (19):

19. specific endowment means any property or money endowed for the performance of any specific service or charity in a math or temple or for the performance of any other religious charity, but does not include an inam of the nature described in Explanation (1) to clause (17);

Explanation. (1) Two or more endowments of the nature specified in this clause, the administration of which is vested in a common trustee, or which are managed under a common scheme settled or deemed to have been settled under this Act, shall be construed as a single specific endowment for the purposes of this Act ;

Explanation.(2) Where a specific endowment attached to a math or temple is situated partly within the State and partly outside the State, control shall be exercised in accordance with the provisions of this Act over the part of the specific endowment situated within the State;

Mr.K.M.Vijayan, would contend that in the absence of any property or money being endowed for performance of any specific service or charity in a Math or Temple or for performance of any other Religious Charity, there cannot be a Specific Endowment. He would therefore, contend that the sine-qua-non for creation of a Specific Endowment is endowment or dedication of money or property for performance of a specific service or charity in a Religious Institution or any other Religious Charity.

15. Pointing out the absence of any of the requirements of a specific endowment in the plaintiff Kattalai, Mr.K.M.Vijayan, learned Senior Counsel would contend that the paintiff Kattalai can never be termed as a Specific Endowment. Therefore, it cannot be brought within the definition of Religious Institution, so as to enable the authorities to levy contribution under Section 92(1) of the Act.

16. Per contra, Mr.S.Jaganathan, learned Government Advocate appearing for the respondents would submit that this Court cannot now go into the question as to whether the plaintiff Kattalai is a Specific Endowment or not. He would contend that the competent Court has in OS No.211 of 1983 rendered a specific finding that the plaintiff Kattalai is a Specific Endowment meant for performance of Annathanam, on the 3rd day of the Thaipusam Festival. Once the Competent Court had, in the statutory suit, concluded that the plaintiff is a Specific Endowment it would automatically fall within the definition of Religious Endowment under Section 6(18) of the Act, liable to pay contribution and be subject to supervision of the Authorities under the Act.

17. I have bestowed my anxious consideration to the rival submissions.

18. The following provisions of the Act assume significance in the light of the controversy. Sections 6(5), defines a Charitable Endowment and it reads as follows:

Section 6 (5): Charitable endowments means all property given or endowed for the benefit of, or used as of right by, the Hindu or the Jain community or any section thereof, for the support or maintenance of objects of utility to the said community or section, such as rest-houses, choultries, patasalas, schools and colleges, houses for feeding the poor and institutions for the advancement of education, medical relief and public health or other objects of a like nature; and includes the institution concerned;

Section 6(16) defines a Religious Charity and the same reads as follows:

Section 6 (16) : religious charity means a public charity associated with Hindu festival or observance of a religious character, whether it be connected with a math or temple or not;

Section 6(18) defines a Religious Institution and it reads as follows:

Section 6(18): Religious institution means a math, temple or specific endowment and includes,:

(i) a samadhi or brindhavan; or

(ii) any other institution established or maintained for a religious purpose.

Explanation.- For the purpose of this clause-

(1) samadhi means a place where the mortal remains of a guru, sadhu or saint is interned and used as a place of public religious worship;

(2) brindhavan means a place established or maintained in memory of a guru, sadhu or saint and used as a place of public religious worship, but does not include the samadhi;) Section 6(19) defines a Specific Endowment and it reads as follows:

(19) specific endowment means any property or money endowed for the performance of any specific service or charity in a math or temple or for the performance of any other religious charity, but does not include an inam of the nature described in Explanation (1) to clause (17);

Section 63 of the Act, which enables the Joint Commissioner or Deputy Commissioner to decide certain disputes and matters and the same reads as follows:

63. [Joint Commissioner or Deputy Commissioner] to decide certain disputes and matters.Subject to the rights of suit or appeal hereinafter provided, the Joint Commissioner or the Deputy Commissioner, as the case may be, shall have power to inquire into and decide the following disputes and matters:

(a) whether an institution is a religious institution ;

(b) whether a trustee holds or held office as a hereditary trustee ;

(d) whether any property or money is a specific endowment;

(e) whether any person is entitled, by custom 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 ;

(f) whether any institution or endowment is wholly or partly of a religious or secular character; and whether any property or money has been given wholly or partly for religious or secular uses ; and

(g) where any property or money has been given for the support of an institution which is partly of a religious and partly of a secular character, or the performance of any service or charity connected with such an institution or the performance of a charity which is partly of a religious and partly of a secular character or where any property or money given is appropriated partly to religious and partly to secular uses, as to what portion of such property or money shall be allocated to religious uses.

Section 69 provides for an Appeal against the orders of the Joint Commissioner or the Deputy Commissioner as the case may be made in exercise of the powers under Section 63 to the Commissioner of the Hindu Religions and Charitable Endowments Board.

69. Appeal to the Commissioner. (1) Any person aggrieved by any order passed by the Joint Commissioner or the Deputy Commissioner, as the case may be, under any of the foregoing sections of this chapter, may within sixty days from the date of the publication of the order or of the receipt thereof by him as the case may be, appeal to the Commissioner and the Commissioner may pass such order thereon as he thinks fit.

(2) Any order passed by the Joint Commissioner or the Deputy Commissioner, as the case may be, in respect of which no appeal has been preferred within the period specified in sub-section (1) may be revised by the Commissioner suo motu and the Commissioner may call for and examine the records of the proceedings as to satisfy himself as to the regularity of such proceedings or the correctness, legality or propriety of any decision or order passed by the Joint Commissioner or the Deputy Commissioner, as the case may be. Any such order passed by the Commissioner in respect of an order passed by the Joint Commissioner or the Deputy Commissioner, as the case may be, shall be deemed to have been passed by the Commissioner on an appeal preferred to him under sub-section (1).

(3) Any order passed by the Commissioner on such appeal against which no suit lies to the Court under the next succeeding section or in which no suit has been instituted in the Court within the time specified in sub-section (1) of section 70 may be modified or cancelled by the Commissioner if the order has settled or modified a scheme for the administration of a religious institution or relates to any of the matters specified in section 66.

Section 70 of the Act provides for a statutory suit against the orders passed by the Commissioner in an appeal under Section 69.

70. Suits and appeals.(1) Any party aggrieved by an order passed by the Commissioner

(i)under sub-section (1) or sub-section (2) of section 69 and relating to any of the matters specified in section 63, section 64 or section 67 ; or

(ii) under section 63, section 64 or section 67 read with sub-section (1)(a), 2 or (4)(a) of section 22 or under section 65 may, within ninety days from the date of the receipt of such order by him, institute a suit in the Court against such order, and the Court may modify or cancel such order, but it shall have no power to stay of order of the Commissioner pending the disposal of the suit.

(2) Any party aggrieved by a decree of the Court under sub-section (1), may, within ninety days from the date of the decree, appeal to the High Court.

Section 92, enjoins an obligation on the part of the Religious Institutions to pay contributions to the Government, the same reads as follows:

92. Religious institution to pay an annual contribution to the Government.(1) Every religious institution shall, from the income derived by it, pay to the Commissioner annually such contribution not exceeding twelve per centum of its income as may be prescribed in respect of the services rendered by the Government and their officers and for defraying the expenses incurred on account of such services.

(2) Every religious institution, the annual income of which, for the fasli year immediately preceding as calculated for the purposes of the levy of contribution under sub-section (1), is not less than five thousand rupees, shall pay to the Commissioner annually, for meeting the cost of auditing its accounts, such further sum not exceeding one and a half per centum of its income upto five lakhs rupees and four per centum of its income if the income exceeds five lakhs, as the Commissioner may determine.

(3) The annual payments referred in sub-section (1) and (2) shall be made, notwithstanding anything to the contrary contained in any scheme settled or deemed to have been settled under this Act for the religious institution concerned.

(4) The Government shall pay the expenses incurred for the purposes of this Act, including the [(i) * * *]

(ii) expenses of Consultative Committees and sub-committees thereof, constituted by the Government or by any officer or authority subordinate to the Government specially authorized by them in this behalf.

(iii) cost of the publication of journals, books, annuals and descriptive accounts relating to religious institutions.

[(iv) ***].

19. From a reading of Section 92 extracted above, it is clear that the every Religious Institution is liable to pay contribution not exceeding 12% of its income for the services rendered by the Government and its officers and for defraying the expenses incurred on account of such services.

20. The liability to pay is statutory and does not depend on the actual expenses it is almost like a tax. Section 63(d) empowers the Authorities to decide whether any property or money is a Specific Endowment. It is pursuant to the said power conferred under Sub Section (d) of Section 63, the Deputy Commissioner had in OA No.59 of 1974 held that the plaintiff Kattalai, would constitute a Specific Endowment.

21. The challenge to the said conclusion by way of an Appeal in OA No.59 of 1974 and a suit in OS No.211 of 1983 had failed. Therefore, the determination by the Deputy Commissioner to the effect that the plaintiff is a Specific Endowment within the meaning of Section 6(19) of the Act has become final. No doubt there is much force in the contention of the learned Senior Counsel Mr.K.M.Vijayan, that unless it is shown that some money or property is endowed for a specific purpose, the Plaintiff Kattalai cannot be termed as a Specific Endowment within the meaning of Section 6(19) of the Act. I do not think, this Court can revisit the said finding which is already become final. The judgment in OS No.211 of 1983 has been produced as Ex.A1. From the said judgment, it is seen that the learned Subordinate Judge, Erode has specifically concluded as follows:

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22. Mr.K.M.Vijayan, learned Senior Counsel would however, submit that the Sub Court had only found that the Department is entitled to supervise and audit the accounts of the Kattalai. Therefore, it cannot claim a right to collect contribution. I do not think that such a contention could be countenanced because the power of the department to levy contribution was never in issue in the earlier proceedings. It is found from the evidence on record that the Plaintiff Kattalai itself has been paying a contribution without any demur, at least, for a few years prior to the filing of the present suit.

23. Once, it is found that the plaintiff is a Specific Endowment within the meaning of Section 6(19), Section 92 of the Tamil Nadu Hindu Religious and Charitable Endowments Act empowers the department to levy and collect contribution and audit fee from religious institutions depending on the income. It is not in dispute that the plaintiff is collecting monies by way of voluntary contribution from the devotees, who take part in the Annathanam, conducted by the descendants of Soorikattu Iyyan on the 3rd day of the Thaipusam festival in Arulmigu Subramaniyha Swamy Temple, Sivanmalai. Therefore, it cannot be said that the plaintiff Kattalai is doing any act, which is totally disassociated from the temple. Once it has been held that the Plaintiff is a Specific Endowment within the definition of Section 6(19) of the Tamil Nadu Hindu Religious & Charitable Endowments Act and in view of the inclusive definition of religious institution, under Section 6(18) of the Act, it would be liable to pay contribution under Section 92(1).

24. Therefore, the question of law is answered against the appellant and the appeal stands dismissed. However in the circumstances, I make no order as to costs.

05.10.2018 jv Index : Yes Internet : Yes Speaking Order To

1. The Fast Track Court III, Dharapuram.

2. The Sub Court, Dharapuram.

R.SUBRAMANIAN,J.

jv Pre Delivery Judgment S.A.No. 530 of 2008 05.10.2018

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