Madras High Court

Yarasee M.Nataraja Chettiar ... vs The Commissioner on 14 July, 2021

                                                                                W.P. No.5049 of 2014


                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS
                                                DATED: 14.07.2021
                                                 CORAM
                                   THE HONOURABLE DR. JUSTICE ANITA SUMANTH
                                               W.P. No.5049 of 2014
                                                       and
                                                M.P. No.2 of 2014

                Yarasee M.Nataraja Chettiar Trust,
                Represented by its Trustee,
                K.Skandamurugan                                           .....Petitioner

                                                       Vs.
                1. The Commissioner,
                Hindu Religious and Charitable Endowments
                Department, Nungambakkam High Road,
                Chennai – 600 034.

                2.The Joint Commissioenr,
                Hindu Religious and Charitable Endowments
                Department, Villupuram.

                3. K.Murugan

                4. The Inspector of Police,
                Chidambaram Town,
                Cuddalore.
                (Impleaded as suo motu as R4 by
                order dated 14.07.2021)                                   …Respondents

                Prayer: Writ Petition filed under Article 226 of the Constitution of India pray-
                ing to Writ of Certiorari to call for the records of the 2nd respondent pertaining



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                1
                                                                                W.P. No.5049 of 2014


                to the proceedings in Se.Mu.Na.Ka.No.268/2014/E2 dated 10.01.2014 and
                quash the same.

                                      For Petitioner  : Mr.P.Valliappan
                                      For Respondents : Mr.NRR.Arun Natarajan
                                                        Government Advocate for R1 & R2
                                                        Mr.R.Swaminathan for R3

                                                      ORDER

Heard Mr.P.Valliappan, learned counsel for the petitioner,

Mr.NRR.Arun Natarajan, learned Government Advocate for the official

respondents/ R1 & R2 and Mr.R.Swaminathan, learned counsel for

R3/Executive officer of the Arulmighu Thillai Kaliamman Thirukovil,

Chidambaram, who has been appointed as the fit person to administer the

properties endowed to the temple for various religious purposes by

AV.Ramalinga Chettiyar under Deed of Trust dated 08.05.1933.

2. The petitioner claims that the A.V.Ramalinga Chettiyar was his

grandfather's grandfather and he constituted a Trust on 08.05.1933 for the

purposes of carrying out various charitable and philanthropic activities. The

Trust owned a property situated at No.3, West Car Street, Chidambaram. The

income from the aforesaid property was to be utilized for Annadhanam during

the Arudra and Ani Thirumanjanam festivals of the Sabanayakar Temple at

Chidambaram.

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W.P. No.5049 of 2014

3. The petitioner was of the view that the building was dilapidated and

the trust was not in receipt of sufficient income to allow for repairs to its

properties. Hence, O.S.No.38 of 2009 was filed before Principal District

Court at Cuddalore seeking permission to sell the Trust property to one

Karthikeyan for an amount of Rs.50,00,000/-. The said suit was decreed on

16.04.2009 and the sale deed registered on 30.04.2009 in favour of

Karthikeyan. The sale consideration of a sum of Rs.50,00,000/- were directed

to be deposited in a Nationalized Bank and the same has been deposited in

Indian Bank, Nellikuppam Branch, Cuddlaore District. According to the

petitioner, the interest from the deposits of the proceeds from sale of the said

property are being utilized towards the objects of the Trust.

4. The petitioner did not choose to array the Hindu Religious and

Charitable Endowments Department as a party in the above suit. Thus a Civil

Revision Petition came to be filed by the Sabanayakar Temple represented by

its Executive Officer, albeit belatedly. When the matter came up for

condonation of delay under CRP SR.No.64869 of 2011, Mr.Justice

R.S.Ramanathan, by his order dated 31.01.2012, accepted the revision

petitioner's submission that it ought to have been heard by the lower Court in

the suit as it was a necessary party. However, in conclusion, he granted liberty

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W.P. No.5049 of 2014

to the revision petitioner to file an appeal against the judgment and decree in

O.S. No.38 of 2009 and raise all pleas therein after obtaining leave of the First

Appellate Court.

5. Admittedly, the HR & CE Department has not exercised the above

option and has allowed the judgment to attain finality. However, what they

did was to pass the impugned order on 10.01.2014. The impugned order

captures the narration in regard to the sale of the property that had been

specifically endowed for a particular purpose as being contrary to the interests

of the endowment and the wishes of the original trustee. The Joint

Commissioner was of the view that the sale of the property to the private

individual should be enquired into and the impugned order states as such in

conclusion.

6. I am given to understand that consequent thereupon, CSR.

No.236/2014 has been filed before the Inspector of Police, Chidambaram

Town, Cuddalore District by the Executive Officer appointed under the

impugned order on 16.10.2020, though nothing has transpired in the interim

thereafter.

7. Learned counsel for the petitioner fairly does not contest the position

that the property in question constitutes a specific endowment in terms of

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W.P. No.5049 of 2014

Section 6(19) of the Tamil Nadu Hindu Religious and Charitable Endowments

Act, 1959, (in short 'Act') insofar as it is a property that has been endowed for

the purpose of a specific service or charity in a temple. The only challenge

raised is as regards the lack of opportunity to the petitioner prior to passing the

impugned order. This aspect of the matter is admitted insofar as no notice has

been issued to the petitioner prior to passing of the impugned order. For this

purpose, the impugned order is liable to be set aside and I do so.

8. Since the property originally endowed has been alienated, the nature

of the asset endowed would now stand altered to the Fixed Deposit comprising

the sale consideration from the property and all terms, conditions and

stipulations attached to the original endowment will attach to, and apply to the

fixed deposit. Learned counsel for the petitioner would confirm that accounts

are being maintained in regard to the income from the fixed deposit and

deployment of the same. This is however a question of fact that needs

verification and confirmation.

9. R4 is thus directed to issue notice to the petitioner, call for all records

as may be necessary and pass a speaking order in respect to (i) whether the sale

consideration has been deposited in full in favour and to the benefit of the

endowment created by AV.Ramalinga Chettiyar (ii) Whether accounts are

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W.P. No.5049 of 2014

being maintained in regard to the income granted from the sale consideration

deposited (iii) whether the proceeds from the sale consideration are being

deployed solely towards the endowment created, and render a finding in regard

to each of the aspects as enumerated aforesaid.

10. Mr.Swaminathan, learned counsel for R3 would also state that the

petitioner was in error in filing a suit as regards the alienation of immovable

Trust property, as the provisions of Section 34D barred the jurisdiction of the

Civil Court in such a situation. I am not inclined to consider any argument in

regard to the civil litigation instituted by the petitioner at this juncture, seeing

as this Court, as early as in 2012 had granted leave to the temple to agitate the

matter by way of a First Appeal and this opportunity has been lost by the

temple.

11. Having said so, his submission would have to be rejected on a plain

reading of Section 34D of the Act, that states as follows:

'34-D. Bar of jurisdiction of Civil Court.—Save as otherwise provided in section 34-A or 34-C, no suit or other legal proceeding in respect of an order passed under section 34-A or 34-B or 34-C, as the case may be, shall be instituted in any court of law.'

12. The bar set out in Section 34D only relates to those proceedings

covered by Sections 34 A, B or C and cannot extend to alienation of

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W.P. No.5049 of 2014

immovable Trust properties, which is dealt with in terms of Section 34 of the

Act, not covered by the exclusions under Section 34D.