Madras High Court
Thangapandiyan vs Shri Kanniga Parameswari Amman ... on 8 April, 2013
Author: S.Manikumar
Bench: S.Manikumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 08.04.2013 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR C.R.P.(NPD).No.1024 of 2013 M.P.No.1 of 2013 Thangapandiyan .. Petitioner ..vs.. Shri Kanniga Parameswari Amman Chathiram, Private Trust, functioning at No.178, Gandhi Road, Mannargudi Town, through its present Managing Trustee, Muthukrishnan Chettiar .. Respondent Civil Revision Petition filed under Article 227 of Constitution of India, to setaside the Fair and Decretal Order, dated 23.07.2010 made in R.C.O.P.No.5 of 2009, on the file of the District Munsif/Rent Controller, Manargudi, Thiruvarur District. For Petitioner : Mr.S.V.Karthikeyan O R D E R
Being aggrieved by the finding regarding maintainability of the rent control proceedings initiated by Shri Kanniga Parameswari Amman Chathiram, through its Managing Trustee, the tenant has filed the present Civil Revision Petition.
2. Facts leading to the Civil Revision Petition are as follows:
The respondent-Chathiram filed a Rent Control Original Petition No.5 of 2009, under Section 10(2)(i) and 10(2)(b)(iii) and 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (for brevity, hereinafter referred to as "the Act"). The revision petitioner/tenant has filed a counter affidavit, raising a preliminary objection that only after deciding the character of the trust, as to whether, it is the public or private trust, the other contentions in the pleadings have to be tested. According to the tenant, the respondent-Trust is a public trust and as per Section 29 of the abovesaid Act, it is exempted from the purview of the Act and as such, the respondent has to file only a suit, and not a Rent Control Original Petition. In the light of the preliminary objections, the Rent Controller, has addressed the issue of maintainability of the RCOP, at the first instance. The cause title of the petitioner in the rent control proceedings reads as, Shri Kannika Parameswari Amman Chathiram, Private Trust - Through its Managing Trustee, Muthukrishna Chettiyar. The revision petitioner has been shown as the tenant. Rental receipts have been issued in the name of Shri Vasavi Kannika Parameswari Amman Chathiram, represented by its Managing Trustee, Muthukrishna Chettiyar. No lease agreement has been filed. Therefore, on the basis of the above facts, a contention has been raised by the revision petitioner that the Choultry or Chathiram, cannot be termed as a private trust, enabling its Managing Director, to prefer a rent control petition. Before the Rent Controller, reliance has also been placed on a decision in Vital Vel Press v. Sri Rangaswamy Temple reported in 2001 (1) CTC 475, wherein, it has been held as follows:
Public Religious Trust whether includes temples Temple by its very definition implies dedication for benefit of public and endowment also presupposes dedication Public Religious Trust therefore will include temples Provisions of Rent Control Act do not apply to Temples in view of exemption granted to Public Religious Trusts On facts also it was held temple under consideration constitutes trust coming under control of Tamil Nadu Hindu Religious and Charitable Endowments Act Public Temple is public religious Trust to which exemption granted under Government Order is applicable.
3. It has been contended by the tenant that nowhere in the receipts issued by Shri Vasavi Kannika Parameswari Amman Chathiram, it has been decribed as a Private Trust and therefore, the nomenclature found in the receipts should prevail over the name given in the cause title and in any event, there is difference in the name and that the Chaitram is meant for public usage and therefore, it cannot be considered as private trust. Per contra, Sri Kannika Parameswari Amman Chathiram, represented by its Managing Director, the petitioner in RCOP, contended that inside the Chaitram, there is a small temple only for the purpose of Arya Vysya Community people and that there is no flagstaff, Moolasthanam, Stone Vigraham, Prakaram and Gopurams and that there is no idol for procession. No Urchavams, recitals of mantrams, archanas and other features, similar to that of a public temple, are performed. Therefore, the petitioner, who initiated the proceedings for eviction, has submitted that it is only a Choultry, where the people belonging to the same community, coming from other districts, get accommodation in the choultry and thus, the said premises have been leased out to the revision petitioner. According to the respondent, the provisions of the HR & CE Act, are not applicable and it is purely a private trust and hence, entitled to maintain a rent control proceedings for eviction. The respondent-Trust has placed reliance, on an order made in CRP.No.182 of 1993, dated 17.04.1935.
4. The Rent Controller, placing strong reliance on the order made in the above CRP., rejected the objections regarding maintainability of the RCOP., and held that Shri Kannika Parameswari Amman Chathiram, is a private trust. Being aggrieved by the same, an appeal has been filed in RCA.No.16 of 2010, before the learned Subordinate Judge, Mannargudi. Subsequently, on an endorsement made by the revision petitioner that he would prefer a Civil Revision Petition, the said appeal has been closed. Therefore, the present Civil Revision Petition, challenging the preliminary finding, as regards the maintainability of RCOP, has been filed.
5. Assailing the correctness of the order of the Rent Controller, holding that Shri Kannika Parameswari Amman Chathiram, is a private trust and taking this Court through the order made in CRP.No.182 of 1993, dated 17.04.1935, Mr.S.V.Karthikeyan, learned counsel for the petitioner/tenant submitted that what has been tested by this Court in the above revision petition, is whether, Shri Kannika Parameswari Amman Chathiram, was a temple or not, as defined under the Hindu Religious and Charitable Endowments Act and whether the then Madras Hindu Religious Endowments Board could have any control over the temple.
6. According to him, in the above case, this Court was not called upon to decide the status of the trust, as to whether, it was a public or private trust and that therefore, the decision, relied on by the Rent Controller, is inapposite to the issue, regarding the preliminary objection, as to the maintainability of the rent control proceedings and therefore, the impugned order, declaring Shri Kannika Parameswari Amman Chathiram, as a private trust, is liable to be set aside.
7. Learned counsel for the petitioner-tenant has further submitted that for deciding the maintainability of the rent control proceedings and the issue, as to whether Shri Kannika Parameswari Amman Chathiram, is a private or public trust, the Court below ought to have considered only the documentary evidence and in the absence of producing the trust deed, the Court below, ought to have upheld the objections regarding the maintainability of the Rent Control proceedings, instead of placing reliance on a decision, which is not pertinent to the issue raised in RCOP.
8. Learned counsel for the petitioner further submitted that if a trust is created for any public purpose or for the benefit of any class or community of the people, the same shall also be a public trust. According to him, if the trust is stated to be constituted for the benefit of Arya Vysya Community people of Mannargudi, then it comes under the definition of Public Trust exempted from the purview of the rent control act.
9. Taking this Court through the rental receipts marked as Exs.P1 to P4, issued in the name of Shri Vasavi Kannika Parameswari Amman Chathiram, Managing Trustee, Muthukrishna Chettiyar and pointing out the difference in the cause title, wherein, Shri Kannika Parameswari Amman Chathiram, has been shown as the petitioner and also the observations of the learned Rent Controller that the petitioner has to be read as, Shri Vasavi Kannika Parameswari Amman Chathiram, learned counsel for the revision petitioner further submitted that it is not the duty of the Court to ascertain, as to how the petitioner should be called, without adequate proof and thus, he has exceeded in its jurisdiction.
10. According to the learned counsel, when the petitioner has been described in the RCOP as Shri Kannika Parameswari Amman Chathiram, the Court cannot arrive at a conclusion that the petitioner should be read as, Shri Vasavi Kannika Parameswari Amman Chathiram, on the basis of the rental receipts, Exs.P1 to P4. In fine, he submitted that the Rent Controller has committed an error, both in law and facts, holding that the petitioner in RCOP., as a private trust.
Heard the learned counsel for the petitioner and perused the materials available on record.
11. Before adverting to the contentious issue, regarding maintainability of the rent control proceedings, based on the finding that Shri Kannika Parameswari Amman Chathiram is a private trust, this Court deems it fit to have a cursory look at the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. Sections 29 and 30 deals with exemptions in the case of certain buildings and the said sections are extracted hereunder:
29. Notwithstanding anything contained in this Act, the Government may, subject to such conditions as they deem fit, by notification, exempt any building or class of buildings from all or any of the provisions of this Act.
30. Nothing contained in this Act shall apply to-
(i) any building the construction of which was, after the date of the commencement of this Act, completed and notified to the local authority concerned, or *(ii) any residential building the rental value of which, on the date of the commencement of this Act, as entered in the property tax assessment book of the municipal council, district board, panchayat or panchayat union council or the corporation of Madras, as the case may be, exceeds two hundred and fifty rupees per mensem, or *Struck down by Supreme Court as unconstitional in 1986 (3) SCC 385 = 1986 (2) MLJ 20 (SC)
(iii) any lease of a building under which the object of the tenant is to run the business or industry with the fixtures, machinery, furniture or other articles belonging to the landlord and situated in such building."
12. The Government Order G.O.Ms.No.2000, Home, dated 16.08.1976 issued in exercise of the power conferred under Section 29 of the Act reads as follows:
"No.II(2)/HO/4520/76. In exercise of the powers conferred by Section 29 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (Tamil Nadu Act 18 of 1960) and in supersession of the Home Department Notification No. II(2)/HO/3811/74, dated 12th August, 1974, published at page 444 of Part II-Section 2 of the Tamil Nadu Government Gazette, dated the 21st August, 1974, the Governor of Tamil Nadu hereby exempts all the buildings owned by the Hindu, Christian and Muslim religious public trusts and public charitable trusts from all the provisions of the said Act.
13. As the learned Rent Controller, has strongly relied on the order of this Court in CRP.No.182 of 1993, dated 17.04.1935, this Court deems it fit to consider the same. The then District Court of Thanjore West has held that Kannika Parameswari Choultry at Mannargudy is a temple, within the meaning of HR & CE Act. The said order has been assailed in the above revision. The narration of the facts extracted in the said Civil Revision Petition are that the chatram was built and maintained by Vysia Community and intended for their benefit. The place had been put to use for (1) Members of the community visiting Mannagudy can get temporary accommodation there and (2) it was allowed to be occupied temporarily by persons wishing to perform marriages and other auspicious ceremonies. There was a prohit, who lived in the building with his family and one of his duties was to offer worship to the image of the goddess, which has been placed there by the community. As per the order, the building has the appearance of an ordinary house with pails and courtyard and features, such as, moolasthanam, store vigraham, prakarams, flagstaff and gopurams, generally associated with a temple, were conspicuously absent. There was no idol to be taken out in procession and that there was no festival to be conducted for the image. There was no recital of mantrams and no performance of archanas on Kala poojas. The building was used in much the same way as a residential house and has a latrine attached to it. While considering the evidence adduced, this Court has also noticed that every person examined had deposed that the building was choultry and not a temple. This Court has also observed that there was not even a single person among the witnesses, who had ventured to assert that it was not a choultry. Upon analysis of the evidence, this Court has also observed that the worship of the image had been carried in the nature of domestic worship, conducted in private households and that the income from the investments was mainly utilised for maintaining the choultry and some little part of it, was used for mandagapadi, ie., for brining the idol of the local temple to the choultry. On the basis of the evidence and material on record, this Court, vide order, dated 17.04.1935, in CRP.No.182 of 1993, has held that the building, which had been used in the same way, as a residential house with laterine attached to it, and in the absence of any recital of mantiram, it cannot be termed to be a religious endowment.
14. Let me consider some of the decisions, relating to exemption.
15. In Christ the King Cathedral v. John Ancheril reported in 2001 (6) SCC 170, the Supreme Court considered the scope and applicability of Section 29 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 and at Paragraph 6, observed as follows:
The law had been stated by this Court to the effect that public religious or charitable endowments or trusts constitute a well recognised group which serves not only public purposes, but disbursement of their income is governed by the objects with which they are created and buildings belonging to such endowments or trusts clearly fall into a class distinct from the buildings owned by private landlords. It is in respect of three areas a regulation would be made under the Act, as has been done in other similar enactments and these areas are (i) with respect to regulation of lease of buildings (residential or non-residential); (ii) control of rent of such buildings and (iii) control of eviction of tenants from such buildings. A public trust, as has been held in S. Kandaswamy Chettiar case (supra), is not likely to unreasonably act either in the matter of enhancement of rent or eviction of tenants being institutions of religion or charity. On that basis, this Court upheld the validity of the exemption granted under the Tamil Nadu Act in favour of such trust or endowment. In the present case, the contention has been specifically put forth that the appellants fall into that very category which came up for consideration before this Court in S. Kandaswamy Chettiar case (supra). Therefore, no distinction can be made between that class of owners of the buildings in that case and in the present case. We do not understand as to what other material was required by the Court in a matter of this nature if the contention put forth before this Court is not that Churches or Mosques, Dioceses, Arch-dioceses, Monasteries, Convents, Wakfs and Madarsas are not religious and charitable in nature."
16. It is settled law that all the buildings owned by the Public Trust and Public Charitable Trust of the religious denomination are exempted from the purview of the Rent Control Act. Reference can be made to the decisions of this Court in Ramdas v. Kaliamoorthy (died) and another, 2004 (4) MLJ 240 = 2004 (3) CTC 122. A building owned by a public religious and charitable institution is exempted from the provisions of the Rent Control Act. [R.Swarnavalli v. H.H.The Prince of Arcot, 2009 (2) CTC 728]
17. The Act will not apply, if the trust is public trust. From the judgment made in CRP.No.182 of 1993, dated 17.04.1935, one thing is very clear that Shri Kanniga Parameswari Amman Chathiram is not a temple and it is only a chathiram or choultry. Admittedly, the trust deed has not been filed. In Dhanasekaran v. The A.R.C.School Board reported in 2009 (1) CTC 779, My Esteemed Brother The Hon'ble Mr. Justice V.Ramasubramanian, while explaining the scope and difference between the statutory exemption under Section 30 of the Act and the exemption granted under Section 29 of the Act, after extracting G.O.Ms.No.2000, dated 16.08.1976, issued in exercise of the power under Section 29 of the Act and Section 10(3)(b) of the Rent Act, at Paragraphs 10 and 11, held as follows:
10. On a cumulative reading of the provisions of the statute and the Government Order, it could be seen that the Act per se applies to residential and non-residential buildings owned by religious, charitable, educational or other public institutions. After making the Act per se applicable, the Act confers powers under Section 29, upon the Government, to exempt any building or class of buildings from all or any of the provisions of the Act. In contra distinction to Section 29, the exemption under Section 30 is a statutory exemption. The exemption provided under Section 29 is actually a power conferred upon the Government to grant exemption to certain types of buildings to which the applicability of the Act, is not in question. In other words, there is a distinction between the exemption under Section 29 and the exemption under Section 30.
11. Keeping this distinction in mind, if we look at the Government Order issued, the Government Order extracted above, exempts only buildings belonging to two types of Trusts, namely (i) Public Charitable Trusts, and (ii) Religious Public Trusts of Hindu, Christian and Muslim Faiths. It is not the case of the petitioner/tenant that the building in question is exempt from the very application of the Act under Section 30. The contention of the petitioner is that the building falls within the exempted category by virtue of the Government Order issued under Section 29. Therefore, in order to bring the building in question, within the purview of the exemption provided under the Government Order extracted above, it must be established that the landlord, invoking the provisions of the Act, is either a public charitable trust or a religious public trust of Hindu, Christian or Muslim Faiths. A reading of Section 10(3)(b) shows that the provision applies to religious, charitable, educational or other public institutions. Section 10(3)(b) does not deal with religious public trusts or public charitable trusts of the kind indicated in the Notification issued by the Government under Section 29. Therefore, if a Trust takes recourse to the Act for evicting a tenant, it should be established by the pleadings and by evidence that such a landlord is either a public charitable trust or a religious public trust within the meaning of the Government Order issued under Section 29. In this case, the Petition for eviction as well as the counter filed by the tenant, does not disclose that the respondent/landlord would fall under either of the two categories, namely, public charitable trust or religious public trust. Therefore, it cannot be contended that the exemption under G.O.Ms. No. 2000, is patently exhibited on the basis of the pleadings, so as to enable the petitioner/tenant to raise it as a point for the first time at the stage of revision. In the decision relied upon by the learned counsel, a copy of the trust deed was marked as exhibit and there was overwhelming oral evidence to show that it was a public charitable trust. But in this case, there is absolutely no pleadings or evidence to show that it is a public charitable or public religious trust and hence the plea cannot be allowed to be raised at the stage of Revision. Hence the first contention is rejected."
18. In the above reported case, it was the contention that the landlord, being an educational institution and whose building is exempted from the purview of the Government Order, issued in exercise of the power conferred under Section 29 of the Rent Act, cannot maintain a rent control proceedings.
19. Keeping the above decision in the back drop and reverting back to the order in CRP.No.182 of 1993, dated 17.04.1935, it is the specific finding of this Court, that the building has the appearance of a ordinary house with pials and courtyard and that the features of the temple were conspicuously absent. The building had been only used as a residential house with laterine attached to it. The evidence recorded in the above case also shows that the worship inside the building was in the nature of a domestic worship, conducted in private households.
20. In Municipal Council, Tirupathi v. Tirumala Tirupathi Devasthanam reported in 1974(1) SCC 683, the Supreme Court defined the word, Choultry as follows:
In the absence of a statutory definition in the Act, recourse has to be taken to the meaning attributed to the word in the dictionaries and the law lexicons as well as to the popular concept of the term. Choultry is indeed an ancient institution and is principally meant for lodging of pilgrims and travellers. It is conceivable that in 1884, when the first municipal legislation was passed in Madras. such institutions were some humble sheds and other structures to enable, the pilgrims to stay for a short while when they came to visit temples and other religious places. This institution, like similar others elsewhere, has come to stay as a symbol of religious and charitable disposition of human mind translated into physical manifestation in the shape of safe shelter for the pilgrims. As man advances and ideas grow and expand, with his ever increasing desire for comfort and convenience, the shape of the choultry must needs also change. It is, therefore,only to be expected that with the growing funds of the Devastbanams, such choultries will be constructed in a modern way catering to the needs and requirements of the, pilgrims and visitors of all classes in a self-contained unit or complex."
In the above decision, the Supreme Court has also extracted the definition of Choultry from the dictionaries, as follows:
The, word "choultry" is not defined in the Act. The word is defined in the Law Lexicon of British India compiled and edited by Ramanatha Aiyar, 1940 edition, as follows :- "Choultry : Chatram, A choultry is a corruption of chavadi. It means a shelter or resting place for travellers. A chathram (corruption of the Sanskrit Sathram) is a house where pilgrims and travellers are fed". In the Shorter Oxford English Dictionary, choultry is described as an Anglo-Indian word "being corruption of Telugu chawadi" and its meaning is given as "A caravanserai". In Wilson's Glossary of Judicial and Revenue Terms, second edition, page 108, "he word is given in different forms such as Chawati or Chauti, corruptly, Choltry or Choultry and the meaning is given as "A public lodging place, a shelter for travellers"
21. From the judgment in CRP.No.182 of 1993, dated 17.04.1935, it could be seen that the Choultry is not meant for all classes of people or general public. It is meant, only as a chathiram, constructed by Arya Vysia community people and intended for their benefit, mainly providing for temporary accommodation to the members of the said community visiting Mannagudy and those, who shall perform marriages and other auspicious ceremonies. As stated supra, the description of the building, as per the order made in CRP.No.182 of 1993, dated 17.04.1935 and its usage, was in the same manner as a residential house with laterine attached to it. When the character of the trust is not intended to serve the general public and when the very nature of the building was a residential house, with no charitable activity being carried on to the general public. The beneficiaries are not the general public and when there is no record to substantiate that the general public were also involved in any activity of the temple or the Chatiram, it is not open to the tenant to contend that it is a public trust, exempted from the purview of the act.
22. The judgment in CRP.No.182 of 1993, dated 17.04.1935, does not state that there was any public charitable or religious activity, enabling participation of general public. In Taloda Muncipality v. Charity Commissioner, Bombay reported in AIR 1968 SC 418, the Supreme, while explaining the meaning of the public trust, at Paragraph 8, held as follows:
The expression "public trust" is defined in s. 2(13) as meaning an, express or constructive trust for either a public, religious or charitable purpose, or both and includes a temple, a math, a wakf, a dharmada or any other religious or charitable purpose or for both and registered under the Societies Registration Act, 1860. A trust for either a religious or charitable purpose or for both by the express words of the definition is a public trust. We are unable to agree with the learned Assistant Judge that Sadhus, religious mendicants and visitors to the samadhi of Nagabawa are not a section of the public. They have a common bond of veneration for the samadhi. The beneficiaries of the trust are an uncertain and fluctuating body of persons forming a considerable section of the public and answering a particular description, and the fact that they belong to a religious faith or a sect of persons of a certain religious persuasion does not make any difference in the matter: Ram Saroop Dasji v. S.P.Sahi [(1959) Supp. 2 SCR 583 = AIR 1959 SC 951]. The property is entrusted to the Municipality for providing shelter to "sadhus, saints and religious mendicants", the purpose, in our judgment, is religious and charitable within the meaning of s. 2(13), of the Act."
23. In Commissioner of Endowments v. Vittal Rao reported in 2005 (4) SCC 120, the Supreme Court, while explaining the difference between a Public and Private Trust, at Paragraph 21, held as follows:
In the earlier round of litigation, it was specifically held that the gift deed did not create an endowment and the temple in question was not a public temple and the land was gifted absolutely to Gunnaji. In a private trust, the beneficiaries are specific individuals and in a public trust, the beneficiary is general public as a class. In a private trust, the beneficiaries can be ascertained whereas in a public trust, they are incapable of ascertainment. In the present case, the ascertained individual was Gunnaji. This position is clear from the decision in Deoki Nandan v. Murlidhar [(1956) SCR 756]."
24. This position has been reiterated in Kuldip Chand v. Advocate-General to Government of H.P., reported in 2003 (5) SCC 46, at Paragraph 34 of the said judgment, which reads as follows:
Long user of a property as Dharamsala by itself would not lead to an inference that dedication of the property by Kunwar Bir Singh in favour of the public was complete and absolute. Had such dedication been made, the same was expected to be recorded in the revenue records."
25. There is no evidence to prove that there was an absolute dedication of the properties to the public nor there is any evidence that the income was devoted for any charitable purpose. Way back in the year 1935, this Court has held that the income was mostly used for maintaining the choultry and a little part of it was used for mandagapadi. Thus, from the above, it could be decided that the temple, which existed, was not dedicated for the benefit of the public. This Court has also observed that the building was used as only as a residence. The revision petition/tenant, who has mainly contended that Shri Kanniga Parameswari Amman Chathiram, is a public trust and therefore, exempted from the purview of the Rent Control Act, has not adduced any strong and concrete evidence to prove that the respondent was a public trust and therefore, by virtue of the provisions, granting exemption, under the Rent Control Act, the rent control proceedings was not maintainable.
26. As observed in the Civil Revision Petition, the idol was not taken out from the building. Rent Control Act applies to residential, as well as non-residential buildings. The revision petitioner/tenant, though objected to the maintainability of the rent control proceedings, has failed to substantiate that the trust does not fall under the exempted categories under Section 10(3)(b) of the Act. Though the revision petitioner has also found fault with the objections of the Rent Controller that the receipts issued in the name of Shri Vasavi Kannika Parameswari Amman Chathiram, should give way to the description of the petitioner, as Shri Kanniga Parameswari Amman Chathiram in the cause title, this Court is of the view that the said objections are not germane to the maintainability of the rent control proceedings, as regards the plea, whether the trust is a private or public trust. The issue, as to whether there is any relationship of landlord and tenant, can always can be adjudicated in the rent control proceedings, notwithstanding the observations made by the Rent Controller.
27. In the light of the above discussion, this Court is of the view that the respondent is a private trust and hence, can maintain the rent control proceedings for eviction, on the grounds raised in the petition. In the result, the Civil Revision Petition is dismissed. No costs. Consequently, connected Miscellaneous Petition is also closed.
skm To The District Munsif/Rent Controller, Manargudi, Thiruvarur District