Madras High Court
The Fit Person vs L.S.Dilli Babu on 11 September, 2020
Author: P. Velmurugan
Bench: P.Velmurugan
C.R.P.NPD No.3501 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 11. 09.2020
CORAM:
THE HON'BLE MR.JUSTICE P.VELMURUGAN
Civil Revision Petition(NPD) No. 3501 of 2011
and
M.P.No.1 of 2011
----
The Fit Person
A/m.Sri Pidari Mailiamman Thirukoil,
Karanai Puducherry,
Chengalpattu. ... Petitioner
Vs
L.S.Dilli Babu,
No.40, Gengaiammal Koil Street,
Chengalpattu.
Now at A/m.Sri Pidari Mailiamman Thirukoil,
Karanai Puducherry,
Chengalpattu. ... Respondent
Prayer : Civil Revision Petition filed under Article 227 of the Constitution of
India to allow the Civil Revision Petition by setting aside the order dated
11.11.2009 in Trust O.P.No.138 of 2009 on the file of the Principal District
Judge, Chengalpattu.
For Petitioners : Mr.A.K.Sriram
for M/s.A.S.Kailasam Associate
For Respondent : Mr.M.Raja Sekhar
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C.R.P.NPD No.3501 of 2011
ORDER
The Civil Revision Petition has been filed to set aside the order dated 11.11.2009 passed in the Trust O.P.No.138 of 2009 on the file of the Principal District Court, Chengalpattu.
2. The respondent herein filed Trust O.P.No.138 of 2009 before the Principal District Court, Chengalpattu to permit him to sell the Trust property and to deposit the sale consideration in Court and learned Principal District Judge, Chengalpattu by an order dated 11.11.2009 granted permission to sell the Trust property and to deposit the sale proceeds in the Nationalized bank and the interest accrued will be permitted to withdraw and spent for maintenance of the temple. The Revision petitioner is the fit person of the Sri Pidari Mailiamman Thiurkoil, Karanai , Puducherry, Chengalpattu. The respondent herein has filed the Trust O.P. without adding H.R. & C.E. Department or Idol or Temple as a party and hence, the petitioner, as the Fit Person, has filed this revision.
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3. While the revision is pending the purchaser of the property has filed a petition in CMP.NO.4226 of 2020 to implead him as a party in the revision and the said petition was dismissed by this Court by an order dated 31.07.2020.
4. The learned counsel for the petitioner would submit that the subject matter of the property belongs to the temple and therefore, trust can not sell the property of the temple. Even if, there is any reason for sale, the property cannot be sold without obtaining prior permission from the Commissioner of the Hindu Religious and Charitable Endowment ( in short H.R. & C.E. ) . The Trust is a Public Religious trust managing the temple and the properties are for the benefit of the temple, and no alienation could be made without getting consent in writing from the Commissioner, H.R & C.E Department. Any alienation would primafacie be hit by section 34 of the H.R. & C.E. Act. The District Court lacks jurisdiction to give permission for sale on an application under Section 34 of the Trust Act. That too, without issuing notice and hearing the authorities under the H.R. & C.E. Act, and also without impleading the H.R. & C.E. Department or Idol or Temple as party to the proceedings, the http://www.judis.nic.in 3/21 C.R.P.NPD No.3501 of 2011 respondent herein got the order behind their back. Now, the petitioner has been appointed as the Fit Person to the temple. Hence, he has filed the present revision challenging the said order.
5. He would further submit that since the properties belongs to the temple and the Trust is the public charitable Trust, Section 34 of the Trust Act could not be applicable. Further, Temple property can be sold only after getting prior permission from the Commissioner , H.R & C.E. Department. That too, through public auction and not private auction. In this case, the learned District Judge, without any jurisdiction, entertained the petition filed by the respondent Trustee and granted permission to sell the property of the temple. It is not sold through public auction, and the trustee themselves entered into an agreement with the third party and sold the property and even no market value was fixed . Only based on the guideline value and also the private agreement, they sold the property. Therefore, once the respondent has no authority to sell the property without the permission of the Commissioner, H.R & C.E Department, the District Judge also has no jurisdiction to entertain the application under Section 34 of the Trust Act. Therefore, the order passed by the learned District Judge in the Trust O.P. would be set aside. http://www.judis.nic.in 4/21 C.R.P.NPD No.3501 of 2011
6. The learned counsel for the respondent would submit that the temple has nothing to do with the Trust. It is only the Trust property. Since the temple has not been maintained properly, in order to maintain the temple, they sought permission before the District Judge to sell the property and the sale price of the property can be deposited in any one of the Nationalized Bank and out of the interest amount, the temple can be maintained. The trust is only a private trust and the properties are not the temple properties. The property does not derive any income for maintaining the temple. Hence, in order to maintain the temple , the application was filed to sell the property, i.e. only to a small extent. Further the learned counsel for the respondent would submit that the petitioner herein is not a party to the proceedings. Therefore, to file a revision, the petitioner, who is the third party, has to obtain leave from the Court. But, no leave was obtained from the Court by the petitioner for filing this revision. Therefore, the revision itself is not maintainable. Section 34 of the Trust Act would applicable to the present case, since the Trust is the private Trust and the same is not under the control of the H.R. & C.E. Department and therefore, the respondent need not get any permission from the Commissioner, H.R. & C.E. department to sell the property. The learned http://www.judis.nic.in 5/21 C.R.P.NPD No.3501 of 2011 District Judge also after considering all the facts, permitted the respondent herein to sell the property and also permitted to deposit the sale price before the Nationalized Bank. The sale is made based on the permission granted by the District Judge in the Trust O.P. and the purchaser is the bonafide purchaser and the respondent has filed the application with bonafide intention to develop the temple, which is not in a good condition and to perform the day to day pooja. Therefore, there is no merit in the revision and the revision is liable to be dismissed.
7. Heard both sides and perused the materials available on records carefully.
8. It is seen that the subject matter of the property belongs to the Temple. The respondent herein has filed Trust O.P.No.138 of 2009 and seeks permission to sell the property belongs to the temple. All the revenue records stand in the name of the temple for the past 70 years and they have also filed Chitta, F.M. Sketch and Encumbrance certificate. Further they have stated in the petition that the temple requires funds for day to day poojas, white washing, construction of office room, library, salary to the Poosari, and oil for lighting the lamp and watchman. The temple property is not fetching any http://www.judis.nic.in 6/21 C.R.P.NPD No.3501 of 2011 income and also there was a labourers' problem that their wages are not increased. Therefore, the respondent herein and the office bearers decided to sell the property to maintain the temple.
9. It is admitted that the property belongs to the temple and the Trust is only a public and charitable Trust, and it is not a private Trust. Therefore, Section 34 of the Trust Act is not applicable in this case. If at all the Trustee wants to sell the property, they ought to have obtained permission from the Commissioner H.R. & C.E department or the Commissioner or temple should have been added as a party in the Trust O.P. However, the respondent has not impleaded the said temple or idol or the Commissioner, H.R. & C.E Department. The respondent herein has filed the Trust OP with nil respondent. Even otherwise if the property belongs to the Public Trust, it can be sold only by public auction in order to ensure transparency. But, in this case, the District Judge permitted to sell the property by privately and further the order itself shows that no market value was fixed and only based on the guideline value issued by the Revenue Department, the Court below permitted to sell the property, which is not proper.
9. Further as contended by the learned counsel for the petitioner no leave http://www.judis.nic.in 7/21 C.R.P.NPD No.3501 of 2011 is necessary because the respondent Trust is not a private Trust and it is only Public and Charitable Trust, the District Court has no authority to entertain the Trust O.P. under Section 34 of the Trust Act. Since the Trust is a public charitable endowment which would meant for public interest and the property belongs to the temple. Therefore, the Trust Act 1882 is not applicable. Therefore, without permission of the Commissioner, H. R & C.E. department, the property of the temple cannot be sold. If the respondent shown the temple or the H.R. & C.E. department in the O.P., they might have raised their objection before the District Court. Since, the respondent did not add the temple or H.R. & C.E. department, actually, they obtained the exparte order.
10. The learned counsel for the petitioner submits that the property belongs to the temple and the respondent also admitted that the property stands in the name of the temple. Therefore, the Trust is a public charitable Trust and not private trust and without permission of the Commissioner , H.R. & C.E, the sale cannot be effected. Since the petitioner herein is appointed as a Fit Person, they have challenged the order by filing the revision petition under Article 227 of the Constitution of India. Under Article 227 of the Constitution of India, this Court has Power to superintendence over the subordinate http://www.judis.nic.in 8/21 C.R.P.NPD No.3501 of 2011 judiciary. If any order passed by the Subordinate Judge without any authority, this Court can invoke the Article 227 of the Constitution of India and set aside the order of the Subordinate Court. Further the learned counsel has relied upon the judgment of the Hon'ble Supreme Court in the case of Joint Commr., Hindu Religious and Charitable Endowments, Admn. Department /vs/ Jayaraman and others reported in 2006(1) SCC 257. The decision rendered in the said case is squarely applicable to the present case on hand. Therefore, It is useful to extract the relevant portions of the said judgment. The relevant portions of the judgment reads as follows :
" 5. The Joint Commissioner of HR&CE, Administration Department, Madurai, on coming to know of the order thus passed by the District Court and the alienation effected, filed a petition under Article 227 of the Constitution in the High Court of Madras on behalf of the Department after obtaining permission to challenge an order to which he was not eo nominee a party. The Joint Commissioner questioned the jurisdiction of the District Court to entertain the petition under Section 34 of the Trusts Act, 1882 pointing out that it was a public trust or a charity, certainly a religious trust, and Section 34 had no application. He also contended that the alienation was clearly in violation of the relevant provisions of the HR&CE Act and the order passed http://www.judis.nic.in 9/21 C.R.P.NPD No.3501 of 2011 by the District Judge without notice to the HR&CE Department was void in law and the District Judge was incompetent to grant the permission in view of the fact that the provisions of the HR&CE Act were attracted and the transaction would be hit by Section 34 of the HR&CE Act. The High Court, rather surprisingly, without properly applying its mind to the facts, the conduct of the claimants and the non-binding nature of the orders passed by the Settlement Tahsildar or the District Judge, without notice to the HR&CE Department and to the deities, has upheld the order of the District Court. By a reasoning that skirts the issue, the High Court confirmed the order of the District Court and dismissed the revision filed by the Joint Commissioner. It is this order of the High Court that is challenged in this appeal by special leave.
6. At the outset, it must be stated that in the absence of the original grants being produced by the claimants, the grants could not have been construed by the District Court or by the High Court to decide upon the nature of the grant. That apart, it was clearly a case where orders have been obtained by the claimants without impleading the deity or the HR&CE Department and the orders so obtained and the patta thus procured, were not binding either on the deities or on the HR&CE Department. Therefore, neither the District Judge nor the Judge of the High Court could have relied on http://www.judis.nic.in 10/21 C.R.P.NPD No.3501 of 2011 those proceedings as against the deities or as against the HR&CE Department.
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.
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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 http://www.judis.nic.in 12/21 C.R.P.NPD No.3501 of 2011 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.
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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 http://www.judis.nic.in 14/21 C.R.P.NPD No.3501 of 2011 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 http://www.judis.nic.in 15/21 C.R.P.NPD No.3501 of 2011 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- http://www.judis.nic.in 16/21 C.R.P.NPD No.3501 of 2011 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 http://www.judis.nic.in 17/21 C.R.P.NPD No.3501 of 2011 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.
13. In the circumstances, we allow this appeal and setting aside the order of the High Court in Civil Revision Petition (NPD) No. 1684 of 2002 and that of the Principal District Judge, Dindigul in Trust Original Petition No. 44 of 2001, dismiss Trust Original Petition No. 44 of 2001 filed by the claimants. Consequently, the permission granted for the sale would also stand set aside and the sale effected by the claimants pursuant to such permission will be deemed void and would confer no right on the purchasers thereunder or on anyone claiming under or through them. It is also clarified that the revised order of the Settlement Tahsildar under Act 30 of 1963 and the revised patta granted are not binding on the deities or on the HR&CE Department. The appellant would be entitled to its costs both here and in the High Court."
11. In this case also admittedly the property belongs to the temple as admitted by the respondent and the respondent filed a petition before the District Court seeking permission of the Court to permit them to sell the property. In the said petition, neither the Idol nor the petitioner, H.R & C.E Department have been added as respondents and the property was also not http://www.judis.nic.in 18/21 C.R.P.NPD No.3501 of 2011 directed to be sold in the public auction and the market value of the property was also not fixed by the District Judge. However, since the property belongs to the temple, as per the above referred decision of the Hon'ble Supreme Court, the District Judge has no authority to grant permission under Section 34 of the Trust Act. Section 34 of the Trust Act is not applicable to the present case. Subsequent to the order of the District Judge, the property was sold to the third party. The purchaser also filed Miscellaneous Petition in M.P.No.4226 of 2020 to implead him in this revision and the same was dismissed by this Court. He has also stated that the sale deed dated 19.03.2010 in Document No.229 of 2010 has been withheld by the Registration Department. The sale deed registered in his name has not yet been released from the office of the Registrar, Guduvanchery for the reason of under valuation. Though it is sold to third party, since the property is undervalued, the same has not been released and the sale deed dated 19.03.2010 is also liable to be setaside and the purchaser can withdraw the amount, which has been deposited in the Nationalized Bank. Therefore, under the facts and circumstances of the case and following the above referred decision rendered by the Hon'ble Supreme Court, this Court is inclined to allow the revision and set aside the order passed by the District Judge and the sale deed effected in favour of the third http://www.judis.nic.in 19/21 C.R.P.NPD No.3501 of 2011 party is also liable to be set aside and the order passed by the District Judge and the sale made by the trustees in favour of the petitioner in M.P.No.426 of 2020 is not valid and bind the petitioner herein.
12. In the result, the Civil Revision Petition is allowed and the order passed by the Principal District Judge, Chengalpattu on 11.11.2009 in Trust O.P.No.138 of 2009 is set aside and the sale made in favour of the petitioner in CMP No.4226 of 2020 is set aside. No costs. Consequently, connected miscellaneous petition is closed.
11.09.2020 mrp To
1. The Principal District Judge, Chengalpattu
2. The Section Officer, V.R. Section, High Court, Madras http://www.judis.nic.in 20/21 C.R.P.NPD No.3501 of 2011 P. VELMURUGAN, J.
mrp C.R.P.(NPD) No. 3501 of 2011
11. 09.2020.
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