Madras High Court
Goswami Madam vs The Joint Commissioner on 23 November, 2021
WP(MD) No.2357 of 2013
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 23.11.2021
CORAM
THE HON'BLE MR. JUSTICE M.SUNDAR
W.P(MD) No.2357 of 2013
and M.P.(MD)No.1 of 2013
Goswami Madam ... Petitioner
Vs.
The Joint Commissioner,
Joint Commissioner Office,
HR & CE Department,
Sivagangai. ... Respondent
PRAYER: Petition filed under Article 226 of the Constitution of India, for
the issuance of a Writ of Certiorari, to call for the records relating to the
impugned order bearing Na.Ka.No.7735/2012/Aa4 dated 23.01.2013 issued
by the respondent and quash the same.
For Petitioner : Mr.S.Anwar Sameem
For Respondent : Mr.M.Lingadurai,
Special Government pleader.
1/22
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WP(MD) No.2357 of 2013
ORDER
Mr.S.Anwar Sammem, learned counsel for writ petitioner and
Mr.M.Lingadurai, learned special Government Pleader for the lone
respondent are before me.
2. Read this in conjunction with and in continuation of earlier
proceedings made in the previous listing on 09.11.2021, which reads as
follows:
'Mr.S.Anwar Sameem, learned counsel for writ petitioner
and Mr.M.Lingadurai, Government Advocate (civil side) on
behalf of lone respondent are before this Court.
2. Counter-affidavit has not been filed by the lone
respondent and State counsel submits that a counter-affidavit
may not be necessary owing to the short point on which the
matter turns.
3. However, learned counsel for writ petitioner requests
for an accommodation citing personal difficulty at his end.
Request acceded to.
4. List a fortnight hence.
5. List on 23.11.2021.'
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3. Pursuant to the aforesaid proceedings, captioned main writ petition
was listed today. It was taken up and heard out.
4. A 'notice dated 23.01.2013 bearing reference Na.Ka.No.
7735/2012/Aa4' issued by the lone respondent (hereinafter 'impugned SCN'
for the sake of convenience and clarity, to be noted SCN denotes 'show
cause notice') has been assailed in this main writ petition.
5. A perusal of the case file placed before me shows that captioned
writ petition was filed on 08.02.2013, therefore it is more than eight years
old and in less than three months from now it will turn nine. An interim
order has been granted by this Court on 11.02.2013 in M.P.(MD)No.1 of
2013 and the same reads as follows:
'Interims Stay. Notice.'
In deference to aforementioned interim order impugned SCN has now been
abeyance for nearly nine years now.
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6. The impugned SCN reads as follows:
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7. Assailing the impugned SCN, learned counsel for writ petitioner
notwithstanding very many averments and several grounds in writ affidavit
made submissions, a summation of which is as follows:
i) under Section 4 of 'The Tamil Nadu Religious and
Charitable Endowments Act, 1959 (Tamil Nadu Act 22 of
1959)' (hereinafter 'TN HR&CE Act' for the sake of
convenience and clarity) only the Commissioner of 'Tamil
Nadu Hindu Religious and Charitable Endowments
Department' [hereinafter 'TN HR&CE Department' for the
sake of convenience and clarity] has the powers whereas
impugned SCN has been issued by the Joint Commissioner.
ii) the Trust deed qua writ petitioner being a trust deed
dated 16.01.1995 makes it clear that the writ petitioner entity
does not qualify either as a religious institution within the
meaning of Section 6 (18) of TN HR & CE Act or as a
temple within the meaning of Section 6 (20) of TN HR&CE
Act. In similar circumstances, this Court interfered and set
aside a notice vide order dated 30.01.2013 made in W.P.
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WP(MD) No.2357 of 2013
(MD)No.30063 of 2012 (Nithyananda Dhyanapeetam,
Thiruvannamalai Branch Vs. The Commissioner, Hindu
Religious and Charitable Endowments Department,
Chennai).
8. In response to the above, learned State Counsel made submissions,
a summation of which is as follows:
i) merely because, impugned SCN has been issued by
the lone respondent it cannot be gain said that the respondent
has not been authorised by the Commissioner.
ii) the examination of the trust deed and as to whether
the writ petitioner entity is qualifies as a religious institution
or a temple is possible only when the writ petitioner responds
to the impugned SCN but writ petitioner without even
responding to the impugned SCN has rushed to this Court.
iii) the order pressed into service is distinguishable on
facts as that is a case where the Hon'ble Court came to the
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conclusion that the writ petitioner entity was not a religious
institution and that such conclusion was arrived at on the
basis of perusal of trust deed.
9. By way of rejoinder, learned counsel for writ petitioner reiterated
the submissions made in the opening arguments.
10. I now embark upon the exercise of discussion and giving by
dispositive reasoning.
11. From the rival submissions captured supra it comes to light that
the first point turns on Section 3 (2) of TN HR & CE Act and the authority
being the Commissioner of 'Tamil Nadu Hindu Religious and Charitable
Endowments Department' ['TN HR&CE Department' for the sake of
brevity].
12. I am of the considered view that this argument is a non-starter.
The reason is sub-Section (3) of Section 1 of TN HR&CE Act, which reads
as follows:
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WP(MD) No.2357 of 2013
'1.Short title, extent, application and commencement:
(1) & (2) ..........
(3).It applies to all Hindu public religious institutions and
endowments including the incorporated Dewaswoms and
Unincorporated Dewaswoms.'
13. A perusal of sub-Section (3) Section 1 of TN HR&CE Act makes
it clear that the TN HR&CE Act applies to all Hindu religious institutions
and endowments. If an exemption has to be made, the Government is the
authority under Section 4 of TN HR&CE Act. Absent any exemption under
Section 4, Section 1(3) of TN HR&CE Act will straightaway operate. In the
case on hand, the argument is the writ petitioner entity is neither a religious
institution nor a temple within the meaning of Sections 6(18) and 6(20) of
TN HR&CE Act. This can be tested only if writ petitioner response to the
impugned SCN. In the case on hand, the writ petitioner has jumped the gun
and come to this Court. Therefore, this argument turning on Section 3(2) of
TN HR&CE Act is a non-starter in the case on hand i.e., it does not come
into play at all as that talks about / deals with enquiry into allegations of
mismanagement.
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14. This takes us to the argument predicated on Section 6(18) and
6 (20) of TN HR&CE Act. A careful perusal of Section 1(3) of TN HR &
CE Act makes it clear that it applies to (a) religious institutions (b)
endowments (c) incorporated Dewaswoms and (d) Unincorporated
Dewaswoms, these four entities are defined in Sections 6(18), 6(20), 6(12)
read with Schedule-I and 6(23) read with Schedule-II respectively of TN
HR&CE Act. What is of greater significance is, a careful perusal of the
definition of religious institutions in Section 6(18) includes a specific
endowment and specific endowment is separately defined under sub-Section
(19) of Section 6 of TN HR&CE Act. Sections 6(18) and 6(19) of TN
HR&CE Act, which read as follows:
'6. Definitions.- In this Act, unless the context
otherwise requires,
(1) to (17) ..................................
(18) "Religious institution" means a math, temple or
specific endowment and includes,:-
(19) "specific endowment" means any property, or
money endowed for the performance of any f specific service
or charity in a math or temple, or for the performance of any
other religious charity , bust does not include an inam of the
nature described in Explanation (1) to clause(17)'
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15. It is further to be noted that Section 6(18) talks about math as well
as temple and the same are defined in Sections 6(13) and 6(20), which read
as follows:
'6. Definitions.- In this Act, unless the context otherwise
requires,
(1) to (12) ..................................
(13) “math” means a Hindu religious institution with
properties attached thereto and presided over by a person, the
succession to whose office devolves in accordance with the
direction of the Founder of the institution or is regulated by usage
and-
......
......
(20) "temple" means a place by whatever designation
known, used as a place of public religious worship, and dedicated
to, or for the benefit of, or used as of right by, the Hindu
community or of any section thereof, as a place of public religious
worship;
16. Therefore, a religious institution will include a specific
endowment within the meaning of Section 6(19) of TN HR&CE Act. In
other words if a corpus has been dedicated for the performance of any
specific service in a math or a temple, the same would come within the
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sweep of Section 6(18) of TN HR&CE Act. This is owing to a conjoint
reading of Sections 6(19) and Section 6(18) of TN HR&CE Act.
17. This takes us to Clause 3 (a) of the Trust Deed, which reads as
follows:
'3.The objects of the Trust are:
(a) to establish and maintain dharmashalas and chowltries
at Rameswaram and other pilgrim centres for the benefit of the
pilgrims and the members of the public;'
18. A careful perusal of aforementioned Clause 3(a) of the Trust Deed
qua writ petitioner entity makes it clear that the dedication of the corpus is
to establish and maintain dharmashalas and chowltries at Rameswaram and
other pilgrim centres. Therefore, prima facie this may qualify as
endowments of a corpus for performance of a specific service being
establishment and maintenance of dharmashalas and chowltries at
Rameswaram and other pilgrim centres. Therefore, there is certainly a
prima facie case which needs to be examined based on factual particulars
more particularly granular factual details and this is imperative to answer
the query as to whether writ petitioner qualifies as a religious institution,
specific endowment etc., qua TN HR&CE Act.
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19. This takes me to the last point which turns on the order made by
another Hon'ble Judge which was pressed into service. I have no difficulty
in accepting the submission of learned State Counsel that in that order this
Court has come to the conclusion that the trust deed therein does not show
that it was intended to be created as a Hindu religious institution. This is
captured in paragraph 36 of the said order. In contradiction, in the case on
hand I come to a prima facie conclusion that the writ petitioner's entity may
come within the sweep of Section 6(19) of TN HR&CE Act owing to clause
3(a) of the Trust deed but a firm decision is possible only on examining
granular factual particulars which in turn is possible only when writ
petitioner responds to impugned SCN with supporting materials. In
addition to this point, I also find two other points which distinguish the case
on hand from the case that has been pressed into service. One point is, on
facts in the case that has been pressed into service viz., Nithyananda
Dhyanapeetam case, the writ petitioner responded to the show cause notice
and thereafter, approached the Court. This is captured in paragraph 7 of the
order, which is at page 5 of the order and the same reads as follows:
'7.Within 4 days from the date of issuance of the show
cause notice, the Manager of the petitioner trust and founder of
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the Trust Sri Nithyananda Swami have received Caveat petitions
lodged by the second respondent with the District and Sessions
Judge, Tiruvannamalai, Sub Court and Munsif Court. This was
apprehending that the trust may move the civil court against the
action of the respondents department. Immediately upon receipt
of the show cause notice, the Manager of the petitioner trust sent
a letter stating that the matter has been referred to their
headquarters and that after getting a reply, he may revert to
them. Since the show cause notice had referred to the report of
the third respondent, Inspector, a request has also been made to
give a copy of the inspection report, which formed foundation for
the show cause notice. Since there was no reply forthcoming, the
petitioner trust moved this court with this writ petition seeking to
challenge the show cause notice dated 11.10.2012.'
20. In the case on hand, the writ petitioner, as already alluded to
supra, has jumped the gun and come to this court even without responding
to the impugned SCN. To be noted, impugned SCN itself has been issued
owing to the petitioner not responding earlier. This is articulated in the
impugned SCN which has been scanned and reproduced elsewhere supra in
this order. The second distinguishing point is, Nithyananda Dhyanapeetam
case, does not deal with Section 1(3) of TN HR & CE Act, whereas I have
delved into Section 1(3) of TN HR & CE Act in the order on hand and I
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have held that exemption to Section 1(3) can only be by way of operating /
invoking Section 4 of TN HR&CE Act.
21. This takes us to the scope of challenge to a SCN in writ
jurisdiction. Challenge to a SCN in writ jurisdiction can only be only on
very limited grounds ie., jurisdictional issue, Natural Justice Principle ['NJP'
for brevity] violation, disregarding settled principle of law to mention some
of the exceptional circumstances under which a Writ Court will interfere
qua challenge to an SCN. One of the recent case laws on this point is
Coastal Container Transporters Association case {order dated 26.02.2019
in Civil Appeal No.2276 of 2019} rendered by Hon'ble Supreme Court.
Facts are captured in paragraph No.4 and ratio (capturing line of authorities)
is set out in paragraph No.19. Paragraph 4 and paragraph 19 read as follows:
'4. Necessary facts, in brief, are as under :
First respondent is an association, whose
members are transport operators engaged in the business of
transportation of goods entrusted by the customers. By way
of impugned show cause notices, the appellants have
proposed to demand service tax from the respondents under
the category of cargo handling service, while it is the case of
the respondents that the service which is being provided by
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them, falls under the taxable category of “goods transport
agency”. The respondents, to bolster their case, have placed
reliance upon circulars dated 06.08.2008 and 05.10.2015
issued by the Central Board of Excise and Customs (CBEC).
Based upon the intelligence gathered by the officers of
Rajkot Regional Unit, which revealed that several business
entities including respondent nos.2 and 3 who are engaged in
doing the business of cargo handling in west coastal region
but had got themselves registered under good transport
agency, by taking approval from the competent authorities,
searches were conducted in the premises of respondent nos.2
and 3. It is alleged that during such searches several
incriminating documents, including the quotations submitted
by the respondent- companies to their customers were seized
and statements of the Directors were recorded as per the
provisions of Central Excise Act, 1944 read with the
provisions under Finance Act, 1994. Subsequently, the show
cause notices dated 08.10.2015 and 30.09.2015, were issued
to respondent nos.2 and 3, which are impugned in the writ
petition filed before the High Court.
5. to 18. .....
19. On the other hand, we find force in the contention
of the learned senior counsel, Sri Radhakrishnan, appearing
for the appellants that the High Court has committed error in
entertaining the writ petition under Article 226 of
Constitution of India at the stage of show cause notices.
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Though there is no bar as such for entertaining the writ
petitions at the stage of show cause notice, but it is settled by
number of decisions of this Court, where writ petitions can
be entertained at the show cause notice stage. Neither it is a
case of lack of jurisdiction nor any violation of principles of
natural justice is alleged so as to entertain the writ petition
at the stage of notice. High Court ought not to have
entertained the writ petition, more so, when against the final
orders appeal lies to this Court. The judgment of this Court
in the case of Union of India & Anr. v. Guwahati Carbon Ltd.
(supra) relied on by the learned senior counsel for the
appellants also supports their case. In the aforesaid
judgment, arising out of Central Excise Act, 1944, this Court
has held that excise law is a complete code in order to seek
redress in excise matters and held that entertaining writ
petition is not proper where alternative remedy under statute
is available. When there is a serious dispute with regard to
classification of service, the respondents ought to have
responded to the show cause notices by placing material in
support of their stand but at the same time, there is no reason
to approach the High Court questioning the very show cause
notices. Further, as held by the High Court, it cannot be said
that even from the contents of show cause notices there are
no factual disputes. Further, the judgment of this Court in the
case of Malladi Drugs & Pharma Ltd. v. Union of India 5,
relied on by the learned senior counsel for the appellants
also supports their case where this Court has upheld the
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judgment of the High Court which refused to interfere at
show cause notice stage.'
22. From the narrative thus far, it is clear that none of the
aforementioned exceptions arise in the case on hand. To be noted, it has
already been alluded to supra by me that the argument predicated on Section
1(3) of TN HR&CE Act is a non-starter.
23. Therefore, the case on hand does not warrant interference qua
impugned SCN.
24. Be that as it may, it is only appropriate that the writ petitioner
responds to the impugned SCN and the respondent takes a decision on the
same on the merits of the reply and in accordance with law after conducting
an enquiry and calling for records if necessary.
25. This court also takes into account the fact that there was an
interim stay operating for eight long years and is in the anvil of turning nine
three month from now. Therefore, captioned writ petition is disposed of by
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making the following order:
(a) this Court does not interfere in impugned SCN
and the same is sustained however, subject to other limbs of
this order infra;
(b) writ petitioner shall respond to the impugned
SCN within a fortnight from today i.e., on or before
07.12.2021. The respondent shall decide the matter on the
merits of the reply and in accordance with law within six
weeks from 07.12.2021 i.e., on or before 18.01.2022.
(c) It is open to the respondent to call for further
records and also call upon the constituents of the writ
petitioner entity to go before him to conclusively decide the
issue and the writ petitioner shall co-operate with this
exercise without seeking undue adjournments or long /
needless rescheduling;
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(d) The observations made in this order are for the
limited purpose of disposal of the captioned writ petition,
they shall be treated as prima facie observations and
therefore, they shall neither impede nor serve as impetus in
the aforementioned exercise which shall be undertaken by
the respondent;
(e) As an interim order has been operating for eight
long years now, this Court deems it appropriate to direct
status quo as of today to be maintained till the disposal of
the matter by the respondent on or before 18.01.2022;
(f) The order of the respondent disposing of the
matter shall be communicated to the writ petitioner under
due acknowledgment within seven working days from the
date of the order;
(g) If the order / conclusion of the respondent is
adverse to the writ petitioner, the order of status quo will
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continue to operate for another fortnight from 18.01.2022
i.e., up to 01.02.2022; and
(h) If the writ petitioner does not send a reply within
a fortnight from today, the benefit of status quo order will
come to an end and it will be open to the respondent to
proceed in accordance with law.
Consequently, connected miscellaneous petition is also closed. There shall
be no order as to costs.
23.11.2021
Index : Yes/No
Internet : Yes /No
vsm
Note :
In view of the present lock down owing to COVID-19
pandemic, a web copy of the order may be utilized for
official purposes, but, ensuring that the copy of the order that
is presented is the correct copy, shall be the responsibility of
the advocate / litigant concerned.
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WP(MD) No.2357 of 2013
To
The Joint Commissioner,
Joint Commissioner Office,
HR & CE Department,
Sivagangai.
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WP(MD) No.2357 of 2013
M.SUNDAR, J.
vsm
W.P(MD) No.2357 of 2013
23.11.2021
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