Madras High Court
Lakshmi Ammal vs The Commissioner, H.R. & C.E. ... on 5 July, 2002
Author: V.S. Sirpurkar
Bench: V.S. Sirpurkar
ORDER V.S. Sirpurkar, J.
1. This writ petition is filed against the order passed by the Commissioner, H.R. & C.E., Chennai under his appellate jurisdiction under Section 69 of the H.R & C.E Act, 1959 (hereinafter called "the Act").
2. The following factual matrix would be necessary to understand the controversy.
The proceedings were initiated by the respondents 3 and 4 herein claiming to be devotees of Pandurangaswamy. The respondents 3 and 4 are Maharashtrians and belonged to the Maratha community. They approached the Civil Court initially vide O.S.144/85 under Section 92 C.P.C for a declaration that the house properties involved were the properties belonging to one Kannuswamy Rao and Lakshmi Bai, who had settled the properties in favour of the deity for holding bajans by a deed dated 6.9.1927. They adopted a son by an adoption deed dated 17.3.1930 and settled western half in his favour. He sold the western portion of the Mutt i.e., the house property which was settled in his favour to one Heeruswami Rao Dongare. The eastern portion of the property covered under the initial registered settlement deed executed on 6.9.1929 continued as such as a trust property. There was another trust deed dated 1.4.1933, whereby a line of succession was prescribed by the founder so as to hold the office of the trustees and in that trust deed, four persons were nominated to function as trustees along with the said adopted son. The further contention was that this eastern half of the property was sold away by legal heirs of Lakshmi Bai, defendants 2 and 3 to defendant 4 in breach of the said trust deed on 13.10.1980. They therefore sought their own appointment as trustees and a declaration that the property being trust property, the transaction dated 13.10.1980 was void. This suit however, did not succeed on the ground of tenability as the Civil Court came to the conclusion that the suit was not maintainable under Section 92 of the Civil Procedure Code and there was a specific remedy available under the Act. The suit was dismissed on 29.10.1987.
3. The present respondents 3 to 8, who claim to be devotees of Pandurangaswamy, came up with an application registered as O.A.7/89 before the Deputy Commissioner, H.R. & C.E. Two of these persons were the plaintiffs in the earlier suit. This application came to be dismissed on 21.5.1991 by the Deputy Commissioner holding that the application was not tenable as there was no property settled and that there was no religious activity going on. An appeal came to be filed before the Commissioner, H.R & C.E under Section 69, which appeal came to be allowed. The appellate authority, whose order is impugned before me in this writ petition came to the conclusion that there was an endowment made in the year 1927 and that the Deputy Commissioner was incorrect in holding that it was not treated as a completely dedicated property. He came to the conclusion that the original settlement deed dated 6.9.1927 was a complete settlement deed in itself, wherein the property was settled totally in favour of the deity of Pandurangaswamy. Therefore, it had to be taken as a complete dedication. It is this order, which has been challenged before me by way of the present writ petition.
4. The learned Senior Counsel Mr.Chandramouli challenges this order on two grounds. Firstly, he says that there was no temple available at all. He points out from the language of Section 64 of the Act that, that Section can be activated only in case where the temple was being mis-managed. The learned counsel points out that it is only in case of the institution being mis-managed or for its proper administration that Section 64 can be activated. Learned counsel points out from the explanation clause of Section 64(1) that an institution would mean a temple or a specific endowment attached to a temple. He wants to suggest that there was no temple in the present case. According to him, it was an admitted position that there was no temple involved. His second submission is that there was no property left, much less, a property dedicated to any temple because, there was no temple at all.
5. The learned counsel appearing on behalf of the respondents however pointed out that these were questions of fact and these could be gone into only by the authorities under the Act. Learned counsel for the respondents points out that the appellate authority has remanded the matter to the Deputy Commissioner with a direction to identify and determine the properties so endowed or dedicated in favour of Pandurangaswamy as contemplated under Section 64(3) of the Act. He therefore contends that the questions as to whether the property was there or not, and whether there is a temple or not in existence, especially being in the nature of questions of fact, they would be outside the jurisdiction of this Court. The learned counsel is again at pains to point out that there is a specific remedy available under Section 70 of the Act of filing a suit against the order passed by the Commissioner pertaining to Section 64.
6. Considering the rival submissions, it must be stated that whether a temple is there or not, is undoubtedly a question of fact and would require the evidence. Such evidence could have been led in a civil suit, which, a party can file within 90 days from the date of the order passed by the Commissioner. Unfortunately, in this case, the writ petitioner has not filed any such civil suit. This being purely a question of fact, cannot be entertained in the writ jurisdiction of this Court under Article 226 of the Constitution of India. This being a basic question, the further question whether there is any property or not available with the said temple is also a question of fact which cannot be gone into. Both these questions could have been gone into in a civil suit. However, the petitioner has not chosen to go before the Civil Court. It may still be open to the petitioner to contend before the Deputy Commissioner that there is no trust property available, much less available for the temple. However, that is for the petitioner to decide. It is only pointed out that a statutory remedy provided under Section 70 of the Act could not have been skirted and a short-cut could not have been taken by way of filing writ petition before this Court. Both the questions argued by the learned Senior Counsel being in the nature of the disputed questions of fact, cannot be entertained in this writ jurisdiction. The writ petition has no merits and is dismissed with costs of Rs.1,000/-. WMP 522/95 is closed.